BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH D. NICOLINO, File No. 881038 Claimant A R B I T R A T I O N VS. CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Joseph D. Nicolino, claimant, against the City of Des. Moines, a self-insured employer, defendant, for workers' compensation benefits as a result of an alleged injury on December 28, 1987. On June 2, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On December 28, 1987, claimant received an injury which arose out of and in the course of employment with the City of Des Moines. 2. Claimant is seeking temporary total disability or healing period benefits only for the time period extending from March 1, 1988. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits shall be $257.79. NICOLINO V. CITY OF DES MOINES Page 2 ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; and, II. The extent of claimant's entitlement to weekly benefits for disability. At hearing the parties indicated in the prehearing report that the issue of claimant's entitlement to medical benefits was no longer in dispute. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant, age 39, testified that he worked for the City from August 1975 until March 1988. At the time of the alleged injury herein, December 28, 1987, he was a truck driver in the forestry department. Claimant said that if he were working in this job today, he would be earning from $11.00 to $11.50 per hour along with a full range of fringe benefits including retirement, sick leave, compensatory time and paid vacation. On December 28, 1987, claimant suffered a work injury while working for the City on the first day back from an extended leave following another work injury. Claimant testified that at this time he felt neck pain radiating down into his arm after pulling tree branches out of a ditch. Claimant said that he told two co-workers of the problem but felt that the pain would subside. He was seen in the employee health clinic following this incident but continued to work in the forestry department. Claimant testified that pain also began to develop in the low back a few days later. Claimant was then seen a couple of times by James Blessman, M.D., the city doctor at the employee health clinic, who prescribed pain and anti-inflammatory medication. Finally, on March 1, 1988, claimant was referred by Dr. Blessman to Thomas Carlstrom, M.D., an orthopedic surgeon, due to claimant's continuing symptoms. Claimant testified that Dr. Carlstrom, who had treated claimant for a prior neck injury, stated that he had never released claimant to return to work on December 28, 1987. Dr. Carlstrom then took claimant off work until March 15, 1988, at which time he released NICOLINO V. CITY OF DES MOINES Page 3 claimant to return to work but only with permanent activity restrictions against lifting from the floor to the waist over 20 pounds, repetitive lifting, shoveling, pushing or pulling over 40 pounds and reaching or lifting above shoulders. After the work injury in this case, claimant and the City of, Des Moines entered into a compromise settlement agreement on March 2, 1988. In this agreement both parties agreed that claimant suffered a prior work injury on January 2, 1985 and settled the issue of claimant's entitlement to disability benefits brought about by that injury. At the time of the January 2, 1985 injury, claimant was working in the parks department shop performing cement, carpentry and plumbing work. According to the records attached to the settlement papers submitted to this agency and claimant's testimony, claimant injured his neck and arm while pulling a chain link fence. Claimant was treated for this injury by Dr. Carlstrom and Dr. Bakoty (first name unknown). Pursuant to this settlement agreement, claimant was paid healing period benefits and was entitled to 100 weeks of compensation benefits for a 20 percent permanent partial "impairment" to the body as a whole. Claimant testified at the hearing in this proceeding that the restrictions imposed by Dr. Carlstrom in March of 1988 were the same restrictions imposed by him following the January 2, 1985 injury. However, Dr. Carlstrom, in a letter to claimant's counsel in July 1988 opined that claimant "suffered a new injury in December, 1987, January and February, 1988, and that he suffered an additional 5-8% impairment of the body as a whole as a result of that activity." Claimant testified that on December 28, 1987, he was performing work which exceeded the restrictions imposed by Dr. Carlstrom. However, on December 18, 1987, following a functional capacity evaluation in November of 1987 by Robert W. Jones, B.S., a vocational evaluator, Dr. Blessman stated he would allow claimant to return to work as a truck driver in the forestry department. The doctor stated that the job would not require claimant to exceed the restrictions he felt should be imposed on claimant's activity. These restrictions were different than Dr. Carlstrom's and consisted of no lifting from floor to waist over 45 pounds and no lifting above shoulder level. Following claimant's referral by Dr. Blessman to Dr. Carlstrom on March 1, 1988, and the reimposition of the 20 pound limit for lifting from floor to waist, Dr. Blessman stated that there was no available work with the City under Dr. Carlstrom's restrictions and claimant was sent home by the personnel department. On January 20, 1989, Dr. Blessman issued a letter report stating that after his review of the medical records NICOLINO V. CITY OF DES MOINES Page 4 and evaluations, claimant could safely drive a motor vehicle but that he could not return to his job in the parks department. The doctor further stated that he would restrict claimant's activities as he has done before by allowing lifting from floor to waist up to 45 pounds but prohibiting all lifting above shoulder level. Unfortunately, Dr. Blessman did not indicate which job he was referring to in the parks department and whether this included the job he was performing on December 28, 1987. Claimant testified that his past employment primarily consisted of manual labor as a "gandy dancer" - a job involving the replacement of rails for a railroad. Also, claimant held jobs performing building maintenance work. Claimant's employment with the City over the years has involved primarily manual labor in the care of parks and cemetery grounds; work as a helper in a sewage treatment plant; and, general equipment maintenance and repair work along with truck driving. Claimant occasionally supervised a tree trimming crew consisting of summer help. Claimant has an eleventh grade formal education but has recently earned his GED. Claimant has received a certificate of completion at an area community college for machine shop work but testified that he has not utilized this training. Claimant has secured other employment since leaving the City of Des Moines with a cement company as a dump truck driver. Claimant testified that no physical work is involved in this job. Claimant stated that he currently earns $7.50 an hour and but will not receive health insurance until after 600 hours on the job. Claimant said that he wants to return to employment with the City due to higher salary and benefits. He said he applied for at least two city jobs but was not chosen. He has refused one job as a street sweeper because such work exceeded his physician imposed activity restrictions. On a few occasions Dr. Blessman expressed concern about claimant's recreational activities of black powder shooting along with competition shooting and hunting with a bow and arrow. Claimant admitted to such activity in the past but states that he has restricted this activity since the development of his neck problems. Michael Peterson, from the City Safety and Training Department, testified that there are several jobs with the City that would fit into claimant's limitations which could become available from time to time. Some of the jobs would involve pay exceeding claimant's salary in the forestry department. Peterson did not indicate when vacancies would occur or claimant's chances of securing these jobs. The current forestry department supervisor, Bob.Cooper, testified that claimant could perform the job he had at the time NICOLINO V. CITY OF DES MOINES Page 5 of the December 28, 1987 injury under the restrictions imposed by Dr. Blessman. It is unclear whether claimant was actually offered a return to work in this driver's job after he left on March 1, 1988. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant will be found credible. I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co. , 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along 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. Asse 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, 290 N.W.2d 348, 354. In the case of a preexisting condi- NICOLINO.V. CITY OF DES MOINES Page 6 tion, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112., 125 N.W.2d 251 (1963). In the case sub judice, claimant contends that he has suffered additional disability (over that which existed prior to December 28, 1987) as a result of the work injury due to additional permanent impairment to the body as a whole. First, the greater weight of the evidence established that he has suffered additional permanent partial impairment. The views of Dr. Carlstrom, a treating physician before and after the December 28, 1987 injury, are virtually uncontroverted on the issue of his additional impairment rating. However, the mere fact that a worker suffers additional permanent partial impairment may or may not entitle claimant to permanent partial disability benefits for a loss of earning capacity under traditional industrial disability concepts. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, February 28, 1985.) NICOLINO V. CITY OF DES MOINES Page 7 Turning to the factors of industrial disability, claimant's medical condition before the work injury was far from excellent. He had a very significant permanent partial impairment and very serious work restrictions against lifting, bending, pushing and pulling. It would appear that both Dr. Carlstrom. and Dr. Blessman agreed that there has been change in work restrictions although they disagreed as to what those restrictions should be. Claimant is apparently basing his claim upon his inability to continue working for the City in the forestry department as a truck driver. Claimant testified that he was not allowed to return to work to this job following March 1 of 1988. Given claimant's difficulties in performing that work beginning in December of 1987, the City is certainly justified in not allowing a return to work as claimant would in all likelihood have received further injuries. It is apparent that the restrictions imposed by Dr. Carlstrom as the result of the January 2, 1985 injury were the most correct work activity restrictions given claimant's experience on and after December 28, 1987. Dr. Blessman, in retrospect, was probably not correct in allowing claimant to return to the driver job on December 28, 1987. It is clear to the undersigned that he was not physically able to perform such work and will never be able to do so. Unfortunately, this disability well preceded and is unrelated to the work events of December 28, 1987. Therefore, given the evidence, this deputy commissioner must conclude that despite additional permanent partial impairment, the added impairment caused no further loss of earning capacity other than that which existed prior to December 28, 1987. This administrative law judge has ruled in the past that permanent partial impairment is only one factor in the total analysis of industrial disability or loss of earning capacity. Any change of permanent partial impairment may or may not result in compensable disability. Even when a work injury has not caused permanent partial impairment, this deputy commissioner has awarded benefits when the work injury resulted in a change of employment status which reduced claimant's earning capacity. In the case at bar, this analysis works against the claimant because although there is permanent partial impairment it does not affect his ability to work. The injury, by itself, has not affected his ability to work beyond that which previously existed. On the other hand claimant has shown an aggravation of a preexisting condition and is entitled to temporary total disability benefits for any time lost from his work from the City between December 28, 1987 and March 15, 1988. The only showing of a medically authorized absence is from March 1, 1988 through March 15, 1988, upon the advice of Dr. Carlstrom after which time claimant returned to the same NICOLINO V. CITY OF DES MOINES Page 8 condition he was before December 28, 1987, at least insofar as his work activity and restrictions are concerned. Therefore, 15 days of temporary total disability benefits will be awarded. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that he was testifying truthfully. 2. On December 28, 1987, claimant suffered an injury to the neck and arm which rose out of and in the course of his employment with the City of Des Moines. 3. The work injury of December 28, 1987, was a cause of a period of temporary total disability from work from March 1, 1988 through March 15, 1988, at which time claimant returned to the same condition as before December 28, 1987. During this time, claimant was under the care of his primary treating orthopedic surgeon. 4. The work injury of December 28, 1987, was a cause of a five to eight percent permanent partial impairment to the body as a whole. However, claimant's work restrictions imposed by treating physicians remain unchanged by this injury. 5. Claimant has failed to show that the work injury of December 28, 1987 and the additional permanent partial impairment caused thereby is a cause of additional permanent partial disability. The additional permanent partial impairment did not change the work restrictions. Claimant injured himself on the first day after his return to work from the effects of a prior neck and arm injury on January 2, 1985. Claimant had a very significant prior disability which greatly affected his earning capacity before December 28, 1987. Claimant had prior work restrictions consisting of no lifting from floor to waist over 20 pounds, no repetitive bending, no shoveling, no lifting above shoulder level and no pushing or pulling over 40 pounds. Claimant returned to work on December 28, 1987, to the job of truck driver in the forestry department. The demands of that job exceeded claimant's physical limitations and he immediately aggravated his prior existing condition. Claimant's earning capacity remains unchanged by the additional permanent partial impairment. CONCLUSIONS OF LAW Claimant has established under law entitlement to two and one-seventh weeks of temporary total disability benefits. NICOLINO V. CITY OF DES MOINES Page 9 ORDER 1. Defendant shall pay to claimant temporary total disability benefits from March 1, 1988 through March 15, 1988,. at the rate of two hundred fifty-seven and 79/100 dollars ($257.79) per week. 2. Defendant shall pay accrued weekly benefits in a lump sum. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of January, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Ave. Des Moines IA 50309-3320 Mr. Steven C. Lussier Mr. Patrick J. Hopkins Assistant City Attorneys City Hall, East lst & Locust Des Moines IA 50307 1803 Filed January 18, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH D. NICOLINO, File No. 881038 Claimant, A R B I T R A T I 0 N VS. D E C I S I 0 N CITY OF DES MOINES, Employer, Self-Insured, Defendant. 1803 - Extent of permanent partial disability Despite a showing of additional permanent partial impairment of five to eight percent in an uncontroverted opinion by an orthopedic surgeon, no additional permanent partial disability or loss of benefits were awarded and there was no finding of an additional loss of earning capacity caused by this impairment. Claimant previously injured his back on January 2, 1985. Claimant had entered into a settlement agreement under Iowa Code section 86.13 for this injury on March 2, 1988. When he returned to work on December 28, 1987, claimant immediately injured himself again. There was, however, no change in restrictions and the original treating physician, an orthopedic surgeon, had not authorized a return to work, only the company doctor. It was found that the company doctor was not correct and should not have allowed the return to work. Claimant was incapable of performing such work. It was found that claimant's work injury and the permanent partial impairment did not change claimant's prior extensive and serious permanent partial disability. It was held that permanent partial impairment is only one factor in industrial disability and does not compel an award of permanent partial disability benefits. This deputy commissioner has held in the past that a work injury can cause permanent partial disability and loss of earning capacity even without a showing of permanent partial impairment. The same analysis must compel no award in the cases where permanent partial impairment has not been shown to materially affect earning capacity. Therefore, only temporary total disability was awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHARON NUTT, File No. 881041 Claimant, A R B I T R A T I O N vs. D E C I S I O N OSCAR MAYER FOODS CORP., F I L E D Employer, NOV 06 1989 Self-Insured, Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by the claimant Sharon Nutt against Oscar Mayer Foods Corporation, self-insured employer, defendant, to recover benefits as the result of an alleged injury sustained on July 22, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa on September 15, 1989. The record consists of the testimony of the claimant; Cecelia Blaskovich; joint exhibits 1 through 4; claimant's exhibits A through G; and, defendant's exhibits 1, 2 and 3. ISSUES The issues the parties set out in the prehearing report for resolution are: Whether claimant's alleged injury on July 22, 1988 arose out of and in the course of her employment; Whether claimant's alleged disability is causally connected to her injury; The nature and extent of claimant's disability and commencement date of any benefits; Whether claimant is entitled to medical benefits under section 85.27 of The Code of Iowa; and, Whether the odd-lot doctrine applies to the claimant. REVIEW OF THE EVIDENCE Claimant testified she is 43 years old and graduated from high school with average grades. Claimant said she has no other formal education. Claimant described the various jobs she has held since high school and before beginning work with the defendant employer on April 25, 1977. Some of these jobs involved taking inventory, ordering stock, being the head person in a women's ready-to-wear department at Kresge's, working in a large Super Valu Store heading a produce department, working at a window manufacturing plant and being head of a men's ready-to-wear-department at Place's. Claimant stated she has had no injuries prior to April 25, 1977 except that she has had a left carpal tunnel syndrome corrected in July of 1980 and a right carpal tunnel correction on December 8, 1981, and a stitch irritation on the left carpal tunnel area on the same date. Claimant emphasized she has no hand problems today. Claimant stated she passed the preemployment physical with no restrictions. Claimant described her job with the defendant employer as requiring lifting 12-15 pound pork bellies and placing them into boxes to ship out, working on the kill floor operating a switch, shaving hogs, taking out hearts, popping kidneys and cheeking. Claimant said that the employer started speeding up the production line in 1983. Claimant indicated she had some right shoulder problems in 1983, but a cortisone shot ultimately solved that problem and she continued working. Claimant stated the pain in her left shoulder and neck began in May of 1988 with no specific incident or occurrence. Claimant said that in the summer of 1988, the pain went into the neck and down the left shoulder. Claimant said she is left-handed. Claimant testified the pain became worse and she sought medical attention. Claimant indicated that the pain became so intense that she did not go to work on July 22, 1988. Claimant testified John L. Beattie, M.D., gave her some muscle relaxants and pain pills to take over the weekend. Claimant said she returned to her cheeking job on July 25, 1988 and tried to work as long as she could. Claimant worked through August 10, 1988. Claimant said she has not returned to Oscar Mayer since August 10, 1988. Claimant stated that she talked to Art Sorenson at Oscar Mayer in July or August of 1988 as to workers' compensation and that he told her it was not work related. Claimant was then placed on sick pay and has used all of it. Claimant said she has had a knot on the back of her head forever and when Kurt Klise, M.D., the company doctor, saw this, she said he told Art Sorenson. Claimant said that Sorenson based his "no workers' compensation" on this. Claimant said Mr. Sorenson told the claimant to obtain a doctor's letter setting out her restrictions. Claimant said the doctor sent this letter to Sorenson (claimant's exhibit A, page 7). Claimant testified she had a test at the University of Iowa Hospitals which she said revealed a tear at the fourth disc in her neck. Claimant said she is scheduled for surgery November 6, 1989. Claimant stated she has a neck collar she wears at times, but.it lies across her shoulder and hurts. Claimant stated she used a TENS unit for two months, but it did not work. Claimant said she filed for unemployment and received 39 weeks of benefits. Claimant indicated she searched for jobs during this period, including applying at IBP, Inc., in July of 1989. Claimant testified she has made no job searches since July of 1989. Claimant indicated she has problems sitting, reading a book, cross-stitching, mowing the yard, or doing certain things around the house because of the pain. Claimant said her injury has affected her emotionally and she takes anti-depressants. Claimant said she would like to scream. Claimant related she was recognized prior to her injury at Oscar Mayer for her perfect attendance. Claimant said she met with the vocational rehabilitation person two times, once on September 5, 1989 and the last time on September 13, 1989. Claimant said the company doctor, Dr. Klise, sent her to Daniel Allen, M.D., and Dr. Allen sent her to David Boarini, M.D. Claimant testified to the medical bills and mileage she has incurred due to her alleged injury. Claimant acknowledged that the lump on her back was diagnosed by Dr. Beattie as arthritis before June of 1988, but emphasized that this is not where her pain is located. She indicated that Dr. Beattie has been her doctor for 15 years. Claimant said she was making $6.49 per hour when she first worked for defendant employer and was making $9.55 per hour when she last worked for them. Claimant said this is approximately three times more per hour than any job she has ever had. Claimant said she did not find out about her surgery until August 31, 1989, two weeks before this hearing. Cecilia Blaskovich, owner of Medisult, Ltd., and a rehabilitation nurse consultant, testified that she reviewed claimant's file, medical information and status of any restrictions. She testified claimant could be the head or manager of several available businesses. Blaskovich testified claimant told her that claimant is to have cervical fusion surgery November 6, 1989. Blaskovich said this surgery should enhance claimant's ability to get a job and also should alleviate her pain.. She said if claimant was willing to travel to Des Moines, she could get a good job at $5-$6 per hour. Blaskovich acknowledged she was first contacted by defendant's attorney July 25, 1989 and first contacted claimant on September 6, 1989. Blaskovich said she realized claimant was having surgery so she did not believe there would be any job placement before claimant's surgery. She admitted that she herself had contact with claimant only on September 13, 1989. Blaskovich admitted she feels claimant has neck aches as she observed her and does have restrictions today. Blaskovich defended her permanent no restrictions comment earlier by saying "that she assumed surgery will be successful." Blaskovich denied that all of her information as to jobs today is premised on successful surgery. She agreed that claimant should not get a job now when surgery is scheduled for November of 1989. Later, Blaskovich said that claimant is employable today. Blaskovich then said that it is not an ideal time for claimant to be working, but said that claimant could be looking for a job. Blaskovich emphasized that cervical surgery is always successful, but admitted that limited motion results therefrom. Blaskovich was asked whether she was retained by Oscar Mayer to return claimant to work or to scan the papers to see what jobs are available. She replied, "Not retained to find a job, but to see what opportunities exist in the job market." She admitted that what is best for the claimant is best for her client Oscar Mayer. The claimant's medical records reflect she had a left carpal tunnel syndrome corrected in July of 1980 and a right carpal tunnel correction and stitch irritation on the left carpal tunnel area on December 8, 1981. There was no medical evidence of any impairment resulting from these surgeries. On July 28, 1988, Dr. Boarini wrote: Sharon Nutt was in the office on July 21, 1988. As you know, this is a 44-year-old woman who comes in complaining of left-sided neck pain. She's been on a variety of muscle relaxants and anti-inflammatories without much help. Physical therapy hasn't seemed to change her symptoms. Upon examination, the patient has a good range of motion in the neck. There was some break away weakness in the left arm but I don't think it was physiologic. Sensation is intact. The biceps and triceps reflexes are symmetrical. I reviewed the patient's cervical spine films from few weeks ago and they were normal. I think this is just myofascial neck pain. . . . (Defendant's exhibit 2-h, page 1) On August 24, 1988, Dr. Beattie wrote: I would suggest that a different type of employment be found in the plant. There should not be any movements that require excessive motion of the cervical or upper thoracic spine. She is also limited in her ability to move her arms, particularly in reaching or holding her arms in any abducted positions. This pain syndrome has caused her to necessarily limit the motion of her upper extremity. I hope this letter will confirm that my patient, Sharon Nutt needs a job that is less physically demanding. If such a job can be found, I know that she will be able to continue in.her employment in a satisfactory manner. (Claimant's exhibit A, page 7) On January 16, 1989, Dr. Beattie wrote: Because of the obvious disability in the cervical spine and the upper trapezius area, I measured the motion of the cervical spine. I first measured the range of flexion/extension which should equal 60 degrees. She can flex from neutral position to about 10 degrees which is a loss of 20 degrees and a retention of 10 degrees. She can extend from neutral position to about 10 degrees which is a loss of 20 degrees and a retention of 10 degrees. The next measurement of restriction of the cervical spine was that of lateral bending. The average range of lateral bending or lateral flexion should equal about 80 degrees. She can right lateral flex from neutral position to about 10 degrees which is a loss of 30 degrees and a retention of 10 degrees. She can left lateral flex from neutral position to 10 degrees which is a loss of 30 degrees and a retention of 10 degrees. The next range of restricted motion measured was that of rotation. This should equal about 60 degrees. She can right rotate from neutral position to 10 degrees which is a loss of 20 degrees and a retention of 10 degrees. She can left rotate from neutral position to 10 degrees which is a loss of 20 degrees and a retention of 10 degrees. After further examination of the cervical region it also reveals pain in the upper trapezius area bilaterally. I get the clinical impression that there is atrophy of the upper trapezius muscle bilaterally because of the disability. . . . After my examination of Sharon Nutt, it is my opinion that she has severe and permanent disability in her cervical region. It is my opinion that this disability is related to her 12 years of employment at the Oscar Mayer Plant, and the stress put on her cervical spine by the type of job she was doing, i.e., cheeking on the line. It is my opinion that Sharon Nutt has a permanent partial impairment of the body as a whole in the range of 25-30%. (Claimant's exhibit A, pages 1 and 2) University of Iowa Hospitals and Clinics records on April 5, 1989 reflect: After admission on April 4, 1989, the Orthopaedic diagnosis was established as small central herniation at cervical 5-6. . . . . . . There is noted to be a myelographic defect of C5 cervical root on the right and diffuse bulging on the C5,6 disc on CT scan. Recommendations: We informed the patient that she has a difficult problem and that conservative treatment is the treatment of choice at present. The possibility exists that a surgical procedure might relieve her pain but we estimate the success rate of such a procedure being in the 60% range. We instructed the patient to continue with physical therapy and gave her a soft cervical collar for daytime and nighttime use. We have arranged for her to return to clinic on a day when Dr. Clark is available for a second opinion regarding surgical options for this patient. . . . 5-25-89 Sharon returns for followup and an opinion with review of her study. She underwent a diagnostic work-up by Dr. Glaser. I reviewed her myelogram which showed a mild possible bulge at C5,6 however the CT scan showed no significant bulge and the report states that it was a normal study. The patient's primary complaint is posterior neck and shoulder pain. In addition to the myelogram and CT scan, she has had normal EMG/NCV in April. Assessment: Because of the very mild findings on the myelogram.and because of the essentially normal CT scan, I do not feel that the patient is a candidate for a discectomy and fusion at this time and would prefer conservative treatment. The patient states, however, that she is significantly impaired by this condition. Plan: Therefore, we have elected to give the patient a TENS trial. She was sent to Physical Therapy today for a trial of the unit. She was given a prescription if the patient has a positive trial. The patient will return to clinic in 2-3 months. I discussed with her the possibility of obtaining a discogram if the patient remains symptomatic at that time. The patient was agreeable with this plan. All questions were answered. (Claimant's exhibit B, pages 5 and 6) On July 22, 1989, Peter D. Wirtz, M.D., wrote: The patient was evaluated in my office May 3, 1989. This is a 45 year old that gives a history of neck symptmos [sic] developing on a gradual basis while working at Oscar Mayer doing cheeking in 1988. It became symptomatic June, 1988. She saw Dr. Klise who referred her to Dr. Allen. She did an X-ray in the neck area. The patient was then referred to Dr. Boarini who evaluated the area. The patient continued with symptoms and was referred to Dr. Clark in Iowa City who performed a myelographic CT scan as well as an EMG on the right upper extremity which culminated in a disc abnormality at C5-6. Patient has continued to have pain in the neck area, worse on the right. She notes it off to the right shoulder area and it is in the triceps area as well as numbness in the four fingers. She is not presently on any medications. . . . Diagnosis: 1. Disc herniation C5-6. Regarding 5/l/89 correspondence, the following will be conclusions. The patient's cervical disc degeneration is a natural progression condition of the body and not related to any one specific incident or injury. This patient's neck examination revealed stiffness in a left neck rotation, otherwise, no evidence of neurologic or condition that would restrict her from her routine physiologic activities. The X-ray indicating disc changes at C5-6 are not restrictive in functional activities. This patient's neck condition indicates a disc space degeneration at C5-6 which is a 5% impairment of the body as a whole. This impairment is attributable to the natural disc degeneration this patient has and is not related to any one specific injury or activity. (Defendant's exhibit 2-j, pages 6 and 7) Claimant received several letters congratulating her on perfect or near-perfect attendance at her place of employment with defendant. As an example, a February 1, 1988 letter written to claimant by Mr. Roger D. Kinson, Vice President and Plant Manager, reflected: I would like to take this opportunity to recognize your fine efforts in attaining a perfect attendance record for 1987. This accomplishment demonstrates your strong sense of responsibility to both your fellow employees and your company. Your achievement in maintaining this excellent record certainly deserves our sincere appreciation. Once again, thank you very much for your excellent record! (Claimant's exhibit F, page 4) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 22, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of July 22, 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). 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.2nd 756 (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 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. 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. By the very meaning of the phrase, a person with a "permanent disability" can never return to the same physical condition he or she had prior to the injury....See, 2 A. Larson, The Law of Workmen's Compensation section 57.12 (1981). The healing period may be characterized as that period during which there is reasonable expectation of improvement of the disabling condition," and ends when maximum medical improvement is reached. Boyd v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 (Fla. 1965). That is, it is the period "from the time of the injury until the employee is as far restored as the permanent character of his injury will permit. "Winn Drilling Company v. Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 (1965). See also W. Schneider, Schneider's Workman's Compensation, section 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Winn, 203 N.E. at 906. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981). 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 that the disability bears to the body as a whole. A healing period may be interrupted by a return to work. Riesselmann v. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982). This 43-year-old claimant has worked over 11 years for this defendant employer in an industry that involves long successive hours in repetitive work involving her hands, arms, shoulders and various body movements. Dr. Beattie has treated claimant over a period of at least 15 years. Because of the nature of the injury and complaints, the undersigned believed that Dr. Beattie is the best person to determine whether there is an causal relationship to claimant's disability to any injury. The medical evidence reflects that the nature of claimant's complaints arose out of the nature of her work. The evidence shows that claimant does have an arthritic condition. Most people as they grow older develop to some extent an arthritic condition as they age in the natural process. The nature of claimant's work can result in triggering, worsening or aggravating an underlying arthritic condition that is occurring in one's body through a natural buildup. The undersigned finds that claimant incurred a cumulative injury due to repetitive traumas which resulted in claimant leaving work on July 22, 1988 because of the pain she was having. The undersigned further finds that this July 22, 1988 injury is work related. Dr. Beattie opined after his examination of Sharon Nutt in January of 1989 that she has a severe and permanent disability in her cervical region and that "this disability is related to her 12 years of employment at the Oscar Mayer Plant, and the stress put on her cervical spine by the type of job she was doing, i.e., cheeking on the line." He further opined that "Sharon Nutt has a permanent partial impairment of the body as a whole in the range of 25-30%." Although there is other medical testimony that differs with Dr. Beattie's conclusion and indicates that claimant has a natural buildup of an arthritic condition that is not related to work, these doctors had little contact with the claimant. The undersigned believes the only reason the claimant is missing work and has not been able to return to work is because of the July 22, 1988 repetitive injury to her shoulders and cervical neck area. There are several letters in evidence from the employer commending the claimant for her perfect or near-perfect attendance. These letters cover a period beginning in 1983 with the last letter being dated February 1, 1988. The University of Iowa Hospitals and Clinics records indicate on April 4, 1989 an orthopaedic diagnosis as small central herniation of cervical 5-6. There seems to be later confusion in the medical records of the various doctors as to whether there is a herniation or a mild possible bulge at C5,6. Claimant testified that she is scheduled for surgery on November 6, 1989. This testimony was supported by the defendant's vocational rehabilitation consultant who understands claimant is to have cervical fusion surgery in November of 1989. It appears that the parties did not know that surgery was going to be recommended and in fact to take place until on or around August 31, 1989. It is unfortunate that this hearing was held before the results of this surgery could be determined. It is obvious that the claimant has not healed or reached maximum recovery from her July 22, 1988 injury. Medical records from the University of Iowa Hospitals and Clinics indicate that claimant has been on a conservative program because the success of such surgical procedure anticipated is in the 60% range. It is obvious surgery has been put off to see if in fact the claimant can recover without a dangerous surgical process being performed. It appears that claimant has gone through various medical tests and procedures including the use of a TENS unit to attempt to bring about a complete recovery or at least to reach maximum recovery so that an impairment can be determined, if any. The undersigned finds that Dr. Beattie's use of the word disability is in fact meant to be impairment. The undersigned finds that claimant's current disability is causally connected to her injury of July 22, 1988. Evidence shows that claimant was first off work because of this injury on July 22, 1988 and attempted to return to work on July 25, 1988 and worked to and including August 10, 1988. Because of claimant's condition, she was no longer able to work and has been off work to the present. There are several issues that the parties have set out for resolution. The undersigned finds that because of the impending surgery on November 6, 1989, claimant is still in her healing period. The defendant's vocational consultant's testimony was very confusing and inconsistent. She first indicates the claimant can return to work and has no permanent restrictions, and yet she admitted that she delayed seeing the claimant because she understood the claimant was having impending surgery in November of 1989 and therefore she saw no hurry in attempting to find claimant a job. The consultant further testified that this was not an ideal time for claimant to be working, but indicated that claimant could be looking for a job. She also commented that cervical surgery is always successful. The undersigned finds the consultant's testimony not only confusing and inconsistent, but totally unacceptable. It took claimant's counsel considerable time in his cross-examination to get this witness' inconsistencies and contradictions clarified. Unfortunately, he was not successful and the inconsistencies only increased in the record. The undersigned finds that claimant incurred a healing period of one day on July 22, 1988 and has incurred an additional healing period beginning August 11, 1988 which period continues to run and will continue to run until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury, whichever occurs first, all as provided by 85.34 of The Code of Iowa. Defendant appeared to contend that the claimant is not injured, or that if she is, it was not a work-related injury. It is undisputed that the defendant did not desire to take the claimant back to work or find any alternative employment for her notwithstanding Dr. Beattie's letter to the personnel manager, Art Sorenson, in August of 1988. It appears there was no response from the company concerning this letter, which conduct is frowned upon by the undersigned. All the other issues the parties set out are moot at this time in light of the above finding of the healing period still being in existence. Dr. Beattie issued a 25%-30% impairment rating to the body as a whole. Subsequent to that opinion, additional medical evidence warranted that this claimant has in fact not healed, but needs surgery and it cannot be anticipated when in fact claimant's healing period will end. Therefore, there is only one issue remaining, namely, the responsibility of the medical bills under Iowa Code section 85.27. The defendant denied liability. The defendant is therefore responsible for claimant's medical bills as set out in claimant's exhibit C which total $1,302.00. Defendant is further responsible for the medical bills incurred by this claimant during her healing period for this injury and including her November 6, 1989 surgery. Defendant is also responsible for the medical mileage for treatment as set out in claimant's exhibit G which total 2,732 and for any additional mileage incurred by this claimant for medical treatment during her healing period. Defendant contends that a $200 bill of Dr. Beattie should not be their responsibility since claimant had not filed under 85.39 prior to the hearing. In addition, they contend that there is no other rating by any of the defendant's doctors. The undersigned finds that Dr. Wirtz issued an impairment rating, but even if in fact there had been no other numerical rating by defendant's doctor, the undersigned finds that a finding of no impairment is the same as an impairment rating of zero. Additionally, the undersigned finds that an application for an 85.39 examination need not be made prior to a hearing if the issue is set out on the hearing assignment order which in this case the hearing assignment order does in fact have the 85.39 issue set out therein. Defendant therefore is responsible for the $200 bill of Dr. Beattie, the balance of which it appears is included in the medical bills set out above. Defendant shall be given credit for the $1,892.00 sick pay paid by the defendant and as provided under 85.38(2), Code of Iowa. FINDINGS OF FACT Claimant incurred a work-related cumulative injury to her shoulders and cervical neck area on July 22, 1988 while employed by defendant. Claimant's injury to her shoulders and cervical neck area is a result of her work-related cumulative injury of July 22, 1988. Claimant is not currently working and is scheduled for cervical neck fusion on November 6, 1989. Claimant was willing to work for defendant employer in some capacity within her medical restrictions, but defendant did not respond favorably. Claimant has a mild arthritic condition that is building in her body as a natural event, but this preexisting condition was lighted up, worsened and materially aggravated by claimant's repetitive type of work resulting in the cumulative injury to her shoulders and cervical neck area. Claimant has not reached maximum healing nor is she able to return to work. Claimant has incurred a healing period of one day on July 22, 1988 and a running healing period beginning August 11, 1988 until claimant reaches maximum healing or is able to return to work as provided in Iowa Code section 85.34(1). Said benefits are payable at the rate of $248.39. Permanent partial disability, if any, is not determinable at this time as claimant has not concluded her healing period. Defendant is responsible for payment of claimant's medical bills and medical mileage incurred as a result of her July 22, 1988 injury. CONCLUSIONS OF LAW Claimant's cumulative injury on July 22, 1988 arose out of and in the course of claimant's employment. Claimant's injuries to her shoulders and her cervical neck area are causally connected to her cumulative work injury of July 22, 1988. Claimant's permanent disability, if any, is not determinable at this time as claimant has not concluded her healing period. Claimant has incurred a healing period of one day on July 22, 1988 and a running healing period beginning August 11, 1988. Defendant is responsible for claimant's medical bills and medical mileage expenses incurred to date as a result of her July 22, 1988 injury and as they are incurred up to her November 1989 surgery and thereafter as they relate to this injury and surgery. ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant healing period benefits at the rate of two hundred forty-eight and 39/100 dollars ($248.39) for one (1) day, July 22, 1988, and beginning August 11, 1988 until claimant's healing period ends. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for the one thousand eight hundred ninety-two and 00/100 dollars ($1,892.00) sick pay benefits paid by the defendant and as provided under section 85.38(2) of The Iowa Code. Defendant shall pay interest on the benefits awarded herein as set forth in Iowa Code section 85.30. Defendant shall pay the claimant's medical expenses as set out in claimant's exhibit C which amount to one thousand three hundred two and 00/100 dollars ($1,302.00) and defendant shall pay claimant's medical mileage that totals to date two thousand seven hundred and thirty-two (2,732) miles and for other medical bills and medical mileage as they are incurred by the claimant in connection with this injury and her anticipated November, 1989 surgery. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 6th day of November, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th Street P.O. Box 209 Waukee, Iowa 50263 Mr. Harry W. Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 51100, 51108, 1802 Filed November 6, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHARON NUTT, Claimant, File No. 881041 vs. A R B I T R A T I 0 N OSCAR MAYER FOODS CORP., D E C I S I 0 N Employer, Self-Insured, Defendant. 51100 Found injury arose out of and in the course of claimant's employment. 51108 Causal connection found. 1802 Claimant awarded a running healing period. Claimant was scheduled for a cervical fusion six weeks from hearing. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RON OSTLING, Claimant, vs. File No. 881044 AUTO CONVOY COMPANY, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE 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. ISSUES Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. Defendant states the following issue on appeal: "Has claimant claimant [sic] proven that his industrial disability is greater than the 16.8 percent that defendants have already paid"? FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed September 24, 1991 are adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed September 24, 1991 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that Page 2 have been intentionally deleted and do not form a part of this final agency decision. Due to the finding that the prior injury and disability was related to claimant's employment, apportionment is not proper in this case. ***** Prior existing impairment does not necessarily mandate a finding of a loss of earning capacity when there has been no loss of earnings or employment. Compare Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991). WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant 250 weeks of permanent partial disability benefits at the rate of five hundred twenty-eight and 26/100 dollars ($528.26) per week from October 3, 1988. That defendants shall pay the stipulated amount of healing period benefits pursuant to the correct rate of weekly compensation as set forth herein. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for all voluntary weekly benefits previously paid. That defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this matter including the transcription of the hearing. That defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 3 Copies to: Mr. Dennis L. Hanssen Attorney at Law Terrace Ctr., Ste 111 2700 Grand Ave. Des Moines, IA 50312 Mr. Joseph S. Cortese II Attorney at Law 500 Liberty Bldg. Des Moines, IA 50309 9999 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RON OSTLING, Claimant, vs. File No. 881044 AUTO CONVOY COMPANY, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed September 24, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RON OSTLING, : : Claimant, : : vs. : : File No. 881044 AUTO CONVOY COMPANY, : : 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 is a proceeding in arbitration brought by Ron Ostling, claimant, against Auto Convoy Co., employer (hereinafter referred to as Convoy), and Liberty Mutual, in surance carrier, defendants, for workers' compensation bene fits as a result of an alleged injury on May 25, 1988. On September 16, 1991, a hearing was held on claimant's peti tion and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and ac cepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On May 25, 1988, claimant received an injury which arose out of and in the course of his employment with Convoy. 2. Claimant's entitlement to healing period benefits extends from July 1, 1988 through October 2, 1988, and per manent partial disability benefits should begin as of October 3, 1988. 3. The injury is a cause of some degree of permanent industrial disability to the body as a whole, the extent of which is in dispute. 4. The parties have stipulated to an incorrect rate. Given the stipulation of gross earnings of $945.64 with marital status and entitlement to two exemptions, claimant's Page 2 correct rate of weekly compensation according to the commis sioner's rate booklet for an injury in May 1988 is $528.26. 5. All requested medical benefits have been or will be paid by defendants. issue The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to permanent disability benefits. The parties stated in the prehearing report that defen dants wish to raise an issue of jurisdiction. Such an issue was raised in prior proceedings in this case but such an issue has not been raised since the filing of the petition herein in September 1990. The answer filed to this petition and the hearing assignment order for this proceeding does not identify jurisdiction as a hearing issue. The file fails to show an attempt to modify the hearing assignment order prior to hearing. Finally, defendants did not discuss any jurisdictional issue in their post-hearing brief. Therefore, this deputy commissioner will not hear and decide any jurisdictional issue. Such issues cannot be first raised at hearing but must first be identified in pleadings and at the time of the prehearing conference. Also, the hearing of such an issue would in effect reverse the orders of the prehearing deputy. This deputy commissioner has no such authority. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is not necessary to this decision as defendants do not appear to place claimant's credibility at issue. Claimant is a 52-year-old injured Teamster. At the time of the injury herein, claimant was driving a semi as an over-the-road trucker hauling automobiles out of Kansas City, Missouri, to destinations in the states of Iowa, Nebraska and South Dakota. Claimant had been trucking autos since 1961 except for a five and one-half year period in the late 1960's and early 1970's. As a hauler of automobiles, claimant was required to load and unload the vehicles as well as to secure these vehicles to the trailer using chains and chain tighteners. This required heavy lifting of the chains and heavy pulling, handling and tightening of the chains. Also, claimant indicated that he had to perform a considerable amount of climbing on the trailers at times when ladders were not available. At the time of the injury, claimant was hauling an average of eight to nine cars in each load. Defendants agreed that claimant suffered a work injury in May 1988. The events leading up to the injury were not discussed by claimant at hearing. As a result of the injury, claimant underwent surgery in July 1988 and was not Page 3 able to return to work following surgery until October 1988. Claimant then attempted to return to the same job as a trucker but had to end this work after one week due to back pain. Claimant said that his duties of chaining vehicles down, lifting skids and prolonged driving presented the most difficulty for him. Claimant was then assigned by his em ployer to another job which did not involve driving a truck. The job involved yard work in which claimant and others were assigned to drive new automobiles from an assembly area ap proximately one quarter of a mile to a loading area. Claimant and other drivers would then return by shuttle bus to get another car. Claimant apparently is able to perform this job satisfactorily without problems. Claimant contin ues in this job at the present time. Claimant suffered a prior low back injury at work in 1981. This injury also resulted in surgery. There is little question in the record that claimant suffered perma nent partial impairment as a result of both the 1981 and 1988 work injuries. According to the uncontroverted views of the treating orthopedic surgeon, Sinesio Misol, M.D., who performed both surgeries on claimant's back, claimant suffers a 10 to 15 percent permanent partial impairment from the two work injuries, with each injury contributing equally to this permanent impairment. Subsequent to the 1988 injury, although Dr. Misol has not imposed specific work re strictions, the doctor has advised claimant not to return to truck driving work and the loading and unloading of semis (Joint Exhibit 4, page 8). Despite the back surgery and permanent partial impair ment, claimant suffered little or no loss of earning capac ity as a result of the prior injury of 1981. Claimant returned to the same job he was performing at the time of the 1981 injury and continued in this job uninterrupted until the 1988 injury. Claimant only left his truck driving work after the 1988 injury. To the extent that claimant suffered any permanent partial impairment or any loss of earning capacity as a result of the 1981 injury, this prior injury and any resulting disability was related to claimant's employment. Therefore, as will be explained in the conclusions of law section of this decision, apportion ment of claimant's current disability based upon such a prior work-related injury would be improper. With reference to the extent of claimant's loss of earning capacity from the 1988 work injury, claimant is back to work. His current rate of pay is $16.04 per hour which includes a night pay differential which claimant says he customarily receives. Claimant stated that he is only three or four years from his 30 year retirement and receipt of benefits from the Teamster pension fund. Claimant admitted at hearing that he planned on retiring after thirty years before the 1988 work injury. Claimant has not sought other work other than his current yard work job. Claimant appears to be waiting for retirement. On the other hand, claimant continues to suffer signif icant permanent partial impairment and chronic low back pain. Due to this pain and his susceptibility for further Page 4 injury, he cannot return to truck driving. Claimant's only significant past work experience has been in truck driving, the work that he can no longer perform due to the heavy lifting and prolonged driving requirements of these jobs. Claimant's other past work has involved freight and baggage handling for a major airline, work he, also, can no longer perform. Claimant's vocational rehabilitation potential appears quite low given his age of 52 years and the lack of formal schooling. Although claimant did complete his GED in the military, he dropped out of high school in the eleventh grade. Although claimant's earning potential is over $30,000 a year given his hourly rate, claimant said that he was laid off this past year. He has only worked intermittently in 1991. Claimant explained that although he was one of the highest in seniority as a trucker with Convoy, he lost this seniority status in moving to the yard. Claimant explained that he is now seventeenth in seniority among the yard crew but Convoy has only been working people who are at least fifteenth or sixteenth in seniority ranking. Claimant is not optimistic about the future. Apparently, this decline in available work is not due to economic conditions but due to a structural change in the operations of the Ford Motor Company, in which new car deliveries to Kansas City has been significantly reduced and routed elsewhere. Claimant's testimony in this matter is uncontroverted. Although claimant plans on retiring in three or four years, this is dependent upon how much he continues to work for Convoy because he must be working in order to earn eli gibility time for retirement. Consequently, his layoff status will significantly delay his Teamster retirement. Although he stated at hearing that even if this yard job ends completely, he said that he will attempt to return to trucking despite his back problems to prevent a loss of his pension benefits. However, as a result of a recent grievance proceeding, claimant states that Convoy has indi cated to claimant and to the other yard employees at Convoy that they would not be able to bid back into a trucking job should their yard jobs end. Claimant was credible and un controverted on this matter. However, whether or not Convoy would permit such a return to truck driving, it is clear that such a return to trucking would violate the work restrictions recommended by Dr. Misol. The undersigned doubts Convoy would permit a return to work that would place claimant in a job that would likely risk further injury and would increase defendants' risk of further liability. Claimant states that at the present time he is losing $15,000 to $20,000 in earnings annually as a result of his change of job status from trucking to yard work. Claimant placed payroll records into evidence showing that a fellow trucker who was hired approximately at the same time as claimant and who performed substantially the same work as claimant prior to the 1988 injury, earned approximately $36,000 between January 1, 1991 through August 3, 1991. Claimant over the same period of time only earned approxi mately $16,000. Although claimant's loss of earnings may Page 5 possibly improve in the future, at the present time at least claimant has suffered almost a 60 percent loss of earnings. Finally, at an age of 52, claimant should be in the most productive and high income years of his working career. His loss of earning capacity as a result of the work injury is more than would be the case for a younger or an older individual. Even if claimant would retire in three or four years as planned, given his age, the receipt of a pension would not necessarily end his working career. Many pensioners at that age begin new careers and other endeav ors. However, only looking at claimant's present loss of earning capacity, claimant has suffered a 50 percent loss of earning capacity. What may or may not happen in the future with reference to claimant's yard job and his pension is speculative and will not be considered in arriving at this decision. conclusions of law The parties have stipulated the work injury was a cause of permanent physical impairment or limitation of activity involving the body as a whole, the degree of permanent dis ability. Therefore, the degree of permanent disability for purposes of awarding benefits must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a func tional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an indus trial disability is determined from examination of several factors. These factors include the employee's medical con dition 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 intellec tually, emotionally and physically; earnings prior and sub sequent to the injury; age; education; motivation; func tional 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 trans fer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). Due to the finding that the prior injury and disability was related to claimant's employment, apportionment is not proper in this case. Apportionment of disability between a preexisting condition and an injury is proper only in those Page 6 situations where a prior injury or illness "unrelated to employment" independently produces some ascertainable portion of the ultimate disability. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc., v. Sumner, 353 N.W.2d 407 (Iowa 1984). Prior existing impairment does not necessarily mandate a finding of a loss of earning capacity when there has been no loss of earnings or employment. Compare Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991). Both claimant and defendants speculated at hearing as to what may happen in the future. Defendants argue that claimant will eventually be called back to full time and in any event will retire from the work force when he begins receiving his Teamster pension. Claimant argues that he will probably never return to trucking and may not be able to draw his pension when he planned. However, it is only claimant's present, not his future, earning capacity which is to be measured in awarding permanent disability benefits in these proceedings. Umphress v. Armstrong Rubber Co., file number 723184 (Appeal Decision filed August 27, 1987). In the case sub judice, it was found that claimant has suffered a 50 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 250 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u), which is 50 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that sub section. order 1. Defendants shall pay to claimant 250 weeks of per manent partial disability benefits at the rate of five hundred twenty-eight and 26/100 dollars ($528.26) per week from October 3, 1988. 2. Defendants shall pay the stipulated amount of heal ing period benefits pursuant to the correct rate of weekly compensation as set forth herein. 3. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for all voluntary weekly benefits previously paid. 4. That defendants shall pay interest on weekly bene fits awarded herein as set forth in Iowa Code section 85.30. 5. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33, including reimburse ment to claimant for any filing fee paid in this matter. 6. That defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. Page 7 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Dennis L Hanssen Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 Mr Joseph S Cortese II Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1803 Filed September 24, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : RON OSTLING, : : Claimant, : : vs. : : File No. 881044 AUTO CONVOY COMPANY, : : 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 Fifty-two year old Teamster who cannot return to trucking was given yard work estimated to be with a 60 percent loss of earnings at the present time. Claimant was awarded 50 percent based upon a review of all the factors of industrial disability. Defendants and claimant argued as to what may or may not happen in the future with reference to claimant's current job and earnings. These arguments were rejected under the Umphress appeal decision in which former commissioner David Linquist held that looking into the future with reference to earning capacity was speculative and improper in these proceedings. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES EARL LEWIS, : : File No. 881048 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N J. I. CASE COMPANY, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, James Earl Lewis, against his employer, J. I. Case, self-insured employer, defendant. The case was heard on January 24, 1991, in Burlington, Iowa at the Des Moines County Courthouse. The record consists of the testimony of claimant. The record also consists of the testimony of Phillip Michael Evans, foreman at J. I. Case, and the testimony of Sue Nelson, benefits administrator at J. I. Case. Finally, the record consists of joint exhibits 1-17. issues The issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 4) whether claimant tendered proper notice pursuant to section 85.23 of the Iowa Code. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 38 years old. He is the divorced father of five children. Claimant has been employed since the age of 4 when he was hired to pick cotton in the fields. He is the sixteenth child out of 23 siblings. He completed the ninth grade but he left home at age 14 to work in the construction trades. Claimant commenced his employment with defendant-employer on January 4, 1972. He was hired as a shear helper. However, later in his employment, claimant's status changed to fork truck driver. He engaged in lifting, bending, stooping, standing and sitting. In 1974, claimant experienced problems with his back. Page 2 He sought attention from an orthopedic specialist, Webster Gelman, M.D. Dr. Gelman performed a laminectomy at L3, 4, and 5. Following the surgery, claimant returned to work as a fork truck driver. Periodically, claimant would encounter difficulties. In June of 1985, claimant sought treatment for his back condition. He was treated conservatively by Pat Schneider, M.D. Claimant was off work from June 20, 1985 to October 14, 1985. During that time claimant received accident and sickness weekly benefits. No workers' compensation benefits were requested by claimant. Claimant's physician, Pat Schneider, M.D., wrote on the attending physician's statement: "Did this sickness or injury arise out of patient's employment? [ ] yes [x] no." On January 8, 1987, claimant went to see Dr. Schneider. Claimant informed his physician that claimant's back hurt during his vacation as he had to drive to Arkansas. Medical notes for Dr. Schneider on that day state: * Pt. is having a flare of his rt. L4-5 disc. The sciatic notch is tender and reproduces pain into the calf and lat. aspect of the ankle. .... S Pt. went Xmas to see his fiance in Arkansas, developed a cough. Returned New Year's Day and had back pain and pain in his calf at that time. Denies any back pain but with prolonged sitting has more rt. calf pain. O Aa. Pressure in rt. sciatic notch reproduces his calf pain. A Aa. Flare of rt. sciatica secondary to prolonged 800 mile drive and bronchitis. (Exhibit 5, page 4) Claimant was off work as of January 12, 1987. He applied for accident and sickness weekly benefits. He received those benefits through January 8, 1988. On the sickness and accident benefit form, dated January 15, 1987, claimant completed the following: 5. Was an accident involved: [ ] Yes [x] No If Yes, please answer the following: (a) When did the accident happen? Date....19...at...} a.m. (hour)} p.m. (b) Where did the accident happen? City......State........ (c) Were you at work when the accident happened? [ ] Yes [x] No Page 3 (Ex. 11) Sue Nelson, benefits administrator for defendant-employer, completed the bottom portion of exhibit ll. For item six, Ms. Nelson completed the form as follows: 6. Was disability sustained in course of employment? [ ] Yes [x] No ... Dr. Schneider completed a portion of exhibit 11. He wrote in relevant portion on the attending physician's statement: Did this sickness or injury arise out of patient's employment? [ ] Yes [x] No If "YES" explain _________________________________ __________________________________________________ While claimant was off work in 1987, his symptoms worsened. Dr. Schneider referred claimant to E. A. Dykstra, M.D., an orthopedic specialist. Claimant first saw the specialist on May 15, 1987. Claimant completed a patient health questionnaire for Dr. Dykstra. Five written questions were posed to claimant. Claimant answered questions 2-4 as follows: 2. DATE OF ONSET: 7 Jan. 87 3. IF ACCIDENT OR WORK RELATED STATE EXACTLY HOW IT HAPPENED: _____________________________________ 4. WHAT AGGRAVATES THE PAIN: Everything (Ex. 1, Deposition Ex. 2) Dr. Dykstra treated claimant conservatively for recurrent back pain and right leg pain. Claimant's condition again deteriorated and Dr. Dykstra performed a hemilaminectomy at L-5. After therapy, Dr. Dykstra restricted claimant to light duty work. However, defendant-employer had no light duty work available. Claimant was unable to return to full time unrestricted work. Claimant made application for long-term disability benefits through work. He completed his portion of exhibit 10 on December 30, 1987. With respect to question six, claimant answered the form as follows: 6. (a) Is your disability due to an accident? (Answer "yes" or "no") (b) Have you or do you intend to file a claim for Workmen's Compensation benefits? Yes As of the date of the hearing, claimant had received Page 4 sick pay/disability income in the sum of $25,923.53. Claimant also made application to the Social Security Administration for disability benefits. On the face of his application, claimant listed December 25, 1986, as the date his condition first bothered him. Claimant also checked "no" as the answer to whether he intended to file a workers' compensation claim. Claimant signed the application on January 28, 1988. Claimant testified he was awarded social security disability benefits. Claimant testified at his hearing that in 1986 he verbally reported to Mike Evans, his supervisor, a work related back injury. Phillip Mike Evans testified at the hearing that he had no recollection of claimant ever reporting a back injury in either 1986 or early 1987. Moreover, Mr. Evans testified that if claimant had complained of a back injury, it would have been customary for claimant to have been taken to the company nurse or to the hospital. conclusions of law The first issue to address is whether defendant-employer had notice of claimant's alleged workers' compensation injury. Section 85.23 of the Iowa Code provides: 85.23 Notice of injury -- failure to give. Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). Mefferd v. Ed Miller & Sons, Inc., Thirty-Third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). The time period contemplated in Iowa Code section 85.23 does not begin to run until the claimant has knowledge of the nature of his disability. Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951). An employer's actual knowledge of occurrence of injury must include some information that the injury is work-connected in order to satisfy the alternative notice of claim requirement. Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 1980). The interpretation in Robinson was confirmed in Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984). Page 5 A claimant's duty to give notice of injury arises when the claimant should recognize the nature, seriousness and probable compensable character of his injury or disease. The reasonableness of claimant's conduct is to be judged in light of his education and intelligence. Claimant must know enough about the injury or disease to realize that it is both serious and work-connected, but positive medical information is unnecessary if he has information from any source which puts him on notice of its probable compensability. Robinson, supra. The purpose of the 90 day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the acts of the injury. Id.: Knipe v. Skelgas Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985). Koopmans v. Iowa Electric Light and Power Company, (Appeal Decision dated December 30, l981) on appeal to Iowa Supreme Court). The word "compensable" in the workers' compensation notice context is not used to connote legal knowledge that a claim is within the workers' compensation act. Rather, "compensable" means that the disabling injury was work connected. Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979). Unless a statute that imposes a period of limitations expressly authorizes exceptions for extenuating circumstances, it must be applied uniformly even though the result may be harsh. Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 (Iowa 1987). A mistake of law is no more an excuse in connection with a late compensation claim than anywhere else, unless expressly made so by statute. 3 Larson, Workmen's Compensation Law, Section 78.47 at 15-334. The initial determination in the instant case, is whether claimant has given notice of his claim to his employer under section 85.23. The statute allows for two types of notice. The first type of notice is actual knowledge of the occurrence of an injury within 90 days. The second type of notice allowed by statute is notice given to the employer by the injured employee within 90 days from the date of the occurrence of the injury. In the case at hand, claimant alleges he sustained a cumulative injury to his back. In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the Court instituted the "cumulative injury rule." The Court in McKeever, determined that both the two-year statute of limitations (section 85.26(1)) and the 90 day notice under section 85.23 run from the same day. That day is the day of the injury. Id. at 375. The McKeever court held that where a disability was caused by a work activity, which was gradual and progressive in nature, the date of the "injury" was the date on which the claimant, due to pain, was unable to continue Page 6 working. Id. (Also See Craft v. John Morrell & Company, Ct. of Appeals No. 89-369, citing McKeever) On January 8, 1987, claimant, due to pain, was no longer able to work at defendant-employer's establishment. Under section 85.23, and under McKeever, the 90 day period began to run from January 8, 1987. It is evident to the undersigned that no notice was tendered to defendant within those 90 days. The evidence is overwhelming. During the aforementioned period, claimant expressly denied the injury was work related. Moreover he notified his physician, Dr. Schneider, the problems developed over the Christmas holidays when he traveled 800 miles to vacation in Arkansas. Claimant also completed the application for sickness and accident benefits where he checked on the form that the injury did not occur while he was at work. Claimant also testified at the hearing there was a specific trauma at work which occurred in late 1986 which injured his back. This is directly contrary to claimant's cumulative injury theory. Claimant's credibility is put into question. Claimant alleges he did not discover the cause of his herniated disc until November 3, 1987, and that once he "discovered" that his injury was work related, he tendered notice to his employer on December 30, 1987, that he intended to file a workers' compensation claim. It is acknowledged that as of December 30, 1987, defendant had actual notice of claimant's workers' compensation claim. However, it is clear to the undersigned that prior to November 3, 1987, claimant had every reason to discover his injury could have been work related. Dr. Dykstra discussed with claimant his job as a contributing or causative factor. According to Dr. Dykstra's testimony, the physician discussed the role of claimant's job with claimant on each clinical visit from August of 1985 onward. Claimant ignored Dr. Dykstra's discussions. Nevertheless, claimant, despite the physician's discussions, failed to tender notice of a workers' compensation claim until more than 11 months after the injury date. The eleven month period far exceeds the 90 day period allowable to tender notice. It is the determination of this deputy that proper notice under section 85.23 was not tendered to the employer within the 90 day period. Claimant should have discovered his injury was work related. Claimant did not comply with the provisions of section 85.23. Therefore, compensation under the Iowa workers' compensation laws is not allowed. Since section 85.23 disposes of this case, other issues are moot. Additional discussion is unnecessary. order Claimant takes nothing from these proceedings. Defendant pays the cost of these proceedings pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of July, 1991. Page 7 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven J. Crowley Attorney at Law 100 Valley St P O Box 517 Burlington IA 52601 Mr. William J. Cahill Attorney at Law 200 Jefferson St P O Box 1105 Burlington IA 52601 2800, 2801, 2802 Filed July 30, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JAMES EARL LEWIS, : : File No. 881048 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N J. I. CASE COMPANY, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 2800; 2801; 2802 Claimant alleged a work induced cumulative trauma injury. Claimant, due to pain, was no longer able to work at defendant-employer's establishment as of January 8, 1987. No notice was tendered to defendant within those 90 days. During the aforementioned time period, claimant expressly denied the injury was work related. Claimant notified his treating physician his back condition developed over the Christmas holidays when he traveled 800 miles to vacation in Arkansas. Claimant also completed an application for sickness and accident benefits where he checked on the form that the injury did not occur while he was at work. Claimant alleged he did not discover the cause of his herniated disk until November 3, 1987, and that once he "discovered" that his injury was work related, he tendered notice to his employer on December 30, 1987. Held: Claimant did not tender notice pursuant to section 85.23. Notice was not tendered within 90 days of the alleged injury.