BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : CONNIE L. MOSS, : : Claimant, : : vs. : : File No. 881576 UNITED PARCEL SERVICE, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 21, 1994 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Defendants contend that claimant failed to file a timely appeal from the arbitration decision of the deputy industrial commissioner. The deputy's decision was filed on April 21, 1994. Therefore, absent an application for rehearing the deputy's decision would become final on May 11, 1994. On May 9, 1994 claimant filed a motion to expand findings and conclusions. On May 9, 1994 the deputy industrial commissioner held a telephone conference regarding the claimant's motion. Counsel for the parties participated in this telephone conference. The deputy indicated the motion did not raise any matters upon which expansion of findings and conclusions was necessary, and, in his opinion, no further written ruling was necessary. Counsel for the parties agreed with the deputy industrial commissioner. On May 31, 1994 claimant filed a notice of appeal in this action. The claimant's notice of appeal was timely filed. Claimant's motion to expand findings and conclusions was filed within 20 days after the issuance of the deputy's arbitration decision. Pursuant to rule 343 IAC 4.24 "...motions or requests for reconsideration for new trial or retrial or any reexamination Page 2 of any decision, ruling, or order shall be treated the same as an application for rehearing." Therefore, for purposes of determining whether the claimant's notice of appeal was timely filed, the claimant's motion to expand findings and conclusions is treated the same as an application for rehearing. The claimant's motion to expand findings and conclusions was argued before the deputy industrial commissioner on May 9, 1994. On May 9, 1994 the parties agreed with the deputy that it was unnecessary to expand the findings and conclusions and it would be unnecessary for the deputy to issue a written ruling. Pursuant to rule 343 IAC 4.25, the 20 days in which to file a timely appeal to the industrial commissioner from the deputy's arbitration decision began running May 9, 1994. May 29 being a Sunday and May 30 being a legal holiday, the time limit in which to file a timely appeal ended on May 31, 1994. See Iowa Code section 4.1(34). As previously stated the claimant's notice of appeal was filed on May 31, 1994 and therefore constitutes the filing of a timely appeal. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. H. Edwin Detlie Attorney at Law 114 N. Market St. Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 Ottumwa, Iowa 52501-0716 1803.1; 2501; 2503 Filed September 26, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : CONNIE L. MOSS, : : Claimant, : : vs. : : File No. 881576 UNITED PARCEL SERVICE, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 1803.1; 2501; 2503 Claimant injured her right ankle. It was originally thought to be a sprain but she did not recover. Claimant awarded 25 percent permanent partial disability of the leg where changes were shown to extend into the tibia. AMA Guides were found to not be a reliable indicator of the loss of use of the leg since the claimant had lost much of her ability to stand and ambulate, the principle functions for which a leg is used. The impairment based upon range of motion was held to be unrepresentative and was not awarded. Complaints of back pain without a showing of any objective abnormality or disability affecting the back held to be insufficient to transform the injury beyond the schedule. Where the employer provided reasonable care, claimant was not allowed to recover the costs of additional care which she had sought on her own. Claimant was entitled to recover additional expenses incurred with the originally authorized treating physician where the record did not show that she had been prohibited from returning to that original physician. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ CONNIE L MOSS, : : Claimant, : : vs. : : File No. 881576 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Connie L. Moss based upon an injury that occurred on April 5, 1988. The principle issue in the case is determination of the claimant's entitlement to compensation for permanent partial disability. The principle underlying issue is whether it is a scheduled injury or one which should be compensated industrially. Claimant also seeks to recover some medical expenses. The case was heard at Des Moines, Iowa, on March 22, 1994. The record consists of testimony from Connie L. Moss, Daniel Wilharber and Curt Kruse. The record contains joint exhibits A through O. FINDINGS OF FACT Many of the facts in this case are relatively undisputed. Connie Moss injured her right ankle on April 5, 1988, while she was delivering a parcel for her employer. At first the injury was thought to be a simple sprain. Connie did not recover, however, and the ankle has remained quite troublesome for her. She has been unable to resume her work with United Parcel Service as a package car driver. The ankle is very painful for her. It limits her ability to stand and walk. Connie's initial authorized treating physician was Donald Berg, M.D. His conservative care did not resolve her complaints. Her care was then transferred to Stephen Taylor, M.D. A surgical procedure was performed but her complaints were not resolved. Claimant next sought care from Richard Neiman, M.D. Under his care an MRI scan showed a small area of a vascular necrosis involving the posterior Page 2 aspect of claimant's distal tibia. (exhibit L, page 63). Dr. Berg has agreed that the aseptic necrosis was caused by the April 5, 1988 injury. (ex. L, p. 64). Claimant has also developed back pain. Dr. Neiman has reported that the April 5, 1988 injury was a substantial, material factor in causing claimant's back and hip discomfort. He stated that the right ankle affects overall body function. (ex. L, pp. 45, 47). Dr. Neiman has evaluated claimant's permanent impairment. At one time he found her to have an 11 percent impairment of her right ankle. (ex. L, p. 48). On another he rated her as having a 20 percent impairment of her lower extremity. (ex. L, p. 53). On another occasion he found her to have a 20 percent impairment of the foot which was equivalent to 14 percent of the lower extremity. (ex. L, p. 54). Dr. Neiman has also indicated more recently that claimant has a 4 percent impairment of the whole person on account of her ankle and an additional 5 percent impairment of the whole person due to her back discomfort. (ex. L, p. 45). Claimant has been evaluated by Joshua Kimmelman, D.O., who rated her as having a 5 percent impairment of her foot and ankle. (ex. D, p. 21). Claimant has been evaluated by Daniel J. McGuire, M.D., who rated claimant as having a 7 percent impairment of the lower extremity. (ex. B, p. 29). Dr. McGuire did not examine claimant's back but stated that her injury does not extend into the body as a whole. Dr. Taylor reported that there is no significant relationship between claimant's ankle and her back pain complaints. (ex. B, p. 14). On May 17, 1989, he reported that she did not have any permanent impairment as a result of the injury. (ex. B, p. 16). It is found that Connie L. Moss has permanent disability and permanent loss of her right leg as a result of the April 5, 1988 injury. The distal tibia is clearly a part of the leg. Her disability is not limited to her foot. There is ample evidence in the record of this case to indicate that the claimant has back pain. The evidence does not, however, demonstrate that she has disability resulting from any back condition. The record does not show any physiological abnormality affecting claimant's back. All of the physiological abnormality that is found has been in her right leg and ankle. Claimant demonstrates some loss of range of motion at her right ankle joint. The biggest problem, however, with her leg is that she has lost part of her ability to use her leg for activities such as standing and walking. When one considers the functions for which a person typically uses their feet and legs, it is clear that simply measuring the loss of range of motion at the ankle bears little correlation to the loss of the ability to use the foot and leg for standing and ambulation. It is quite likely that the claimant's overweight condition has been a factor in her lack of recovery. Nevertheless, the fact of the matter is Page 3 that she has not recovered and she has lost a very substantial portion of her ability to use her right foot and leg for the things for which feet and legs are customarily used. It is found that Connie Moss has experienced a 25 percent loss of the use of her right leg as a result of the April 5, 1988 injury. The medical care which was provided by the employer in this case appears to have been reasonable. There is certainly no indication that it was not. Claimant entered into a course of care with Dr. Neiman but the overall picture has changed very little. There is nothing to indicate that her care with Dr. Neiman improved her condition. Dr. Berg, however, was one of the originally authorized treating physicians and there is nothing in the record of this case that claimant was told that she should refrain from seeing him again. The charges incurred at Ottumwa Regional Health Center and CT Imaging Service in Ottumwa, on January 31, 1991, were incurred under the direction of Dr. Berg. It is therefore found that the medical expenses claimant incurred with Mercy Hospital in Iowa City and with Richard F. Neiman, M.D., were not authorized by the employer, were not reasonably necessary and did not produce any improvement in the claimant's condition. The care from Dr. Berg at Ottumwa Regional Health Center and CT Imaging Service are found to be authorized, reasonable care provided by an authorized physician. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. Compensation for scheduled permanent partial disability is determined under Iowa Code section 85.34(2)(a) - (t) according to the functional loss of use of the member without considering the impact of the injury upon the individual's earnings or earning capacity. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section Page 4 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). It has been found that the disability in this case is limited to the claimant's right leg. This is therefore a scheduled injury compensable under section 85.34(2)(o) of the Code. When dealing with scheduled injuries the term "loss" which is found in the statute means loss of use. Moses, 194 Iowa 819, 184 N.W. 746. Agency rule 343 IAC 2.4 has adopted the Guides to the Evaluation of Permanent Impairment published by the American Medical Association as a guide and recognizes payments made in the course with that reference as a prima facie showing of compliance with the law. The rule goes on to state that the Guides are not to be construed to prevent other evidence for the purpose of establishing the degree of permanent impairment. The law is well settled that the use of the Guides is not the exclusive manner of determining scheduled disabilities and that claimant's testimony and demonstrated difficulties may be considered in determining the actual loss of use. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Soukup, 222 Iowa 272, 268 N.W. 598. In many cases the rating under the Guides provides a reasonably accurate assessment of the loss of use of the member involved. This is not, however, one of those cases. The claimant's loss of use is not a mere inability to move her foot and ankle through the normal range of motion. It is a much more serious loss because claimant is unable to stand and walk on her foot. This is a very appreciable change from the preinjury status of being able to make deliveries as a package car driver. Feet and legs are used for standing and ambulation. Little of the practical use of a person's foot or leg involves sitting on an examining table and moving it through its range of motion. When loss of use is considered in terms of normal activities of daily living, it is determined that Connie Moss has a 25 percent loss of use of her right leg. Under the provisions of Code section 85.34(2)(o) this entitles her to recover 55 weeks of compensation for permanent partial disability. The employer has previously paid 11 weeks of permanent partial disability compensation. The unpaid remaining balance is therefore 44 weeks. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of Page 5 the Industrial Commissioner 78 (Review-reopen 1975). In this case the employer did not fail to provide reasonable care to the claimant. She was therefore not free to seek out other care on her own. The care which she received from Dr. Neiman appears to have been more in the nature of evaluation for purposes of litigation then for actual treatment though it is clear that both functions were performed. The care does not appear to have been successful at resolving the claimant's complaints. It is not shown to have improved her condition or reduced her degree of disability. Since the care was unauthorized, was sought out by the claimant on her own and did not improve her condition, she is not entitled to recover the cost of that care from her employer. Claimant returned to Dr. Berg who was one of her authorized physicians. It was certainly reasonable that she do so. Dr. Berg made a determination that claimant should receive care at Ottumwa Regional Health Center and CT Imaging Center. The care provided appears to be reasonable. Since it was obtained with an authorized physician, the employer is responsible for the care rendered by Dr. Berg. This included his charge of $25, the charge of Ottumwa Regional Health Center in the amount of $62.90 and the charge from CT Imaging Service in the amount of $820. These total $907.90. ORDER IT IS THEREFORE ORDERED that, after credit is given for payments previously paid, defendants shall pay Connie L. Moss forty-four (44) weeks of compensation for permanent partial disability of her right leg at the stipulated rate of three hundred thirty and 23/100 dollars ($330.23) per week payable commencing July 17, 1989. It is further ordered that defendants pay Connie L. Moss the sum of nine hundred seven and 90/100 dollars ($907.90) as reimbursement for medical expenses pursuant to section 85.27. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this __________ day of April, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page 6 Mr. H. Edwin Detlie Attorney at Law 114 N Market St Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law 111 W 2nd St PO Box 716 Ottumwa, Iowa 52501-0716 1803.1 2501 2503 Filed April 21, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ CONNIE L MOSS, Claimant, vs. File No. 881576 UNITED PARCEL SERVICE, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ------------------------------------------------------------ 1803.1 2501 2503 Claimant injured her right ankle. It was originally thought to be a sprain but she did not recover. Claimant awarded 25 percent permanent partial disability of the leg where changes were shown to extend into the tibia. AMA Guides were found to not be a reliable indicator of the loss of use of the leg since the claimant had lost much of her ability to stand and ambulate, the principle functions for which a leg is used. The impairment based upon range of motion was held to be unrepresentative and was not awarded. Complaints of back pain without a showing of any objective abnormality or disability affecting the back held to be insufficient to transform the injury beyond the schedule. Where the employer provided reasonable care, claimant was not allowed to recover the costs of additional care which she had sought on her own. Claimant was entitled to recover additional expenses incurred with the originally authorized treating physician where the record did not show that she had been prohibited from returning to that original physician. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DUANE BEVINS, : : Claimant, : : File No. 834865 vs. : 881784 : 877458 FARMSTEAD FOODS, : 888705 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier,, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration wherein Duane Bevins seeks permanent partial disability benefits for an alleged cumulative trauma to his right elbow as a result of a September 17, 1986 injury date (file No. 834865). Claimant seeks permanent partial disability payments for a cumulative trauma to his left elbow as a result of an alleged September 17, 1987 injury (file No. 881784). In file No. 877458, claimant seeks permanent partial disability benefits for a cumulative trauma to his left shoulder as a result of an alleged injury on February 15, 1988. In file No. 888705, claimant seeks permanent partial disability benefits for a cumulative trauma to his right knee as a result of an alleged injury on February 15, 1988. Although there are several claims against the employer, the insurance company, and the Second Injury Fund of Iowa, the attorney for defendant employer and insurance carrier indicated that the real issue between claimant and Farmstead Foods and Employers Mutual Company, involves the February 15, 1988 injury (file No. 877458), and the issue of whether the injury was restricted to the left upper extremity (left arm) or involves the body as a whole. Claimant amended his petition in or around April 10, 1990 to add the Second Injury Fund because of the dispute over whether the alleged left shoulder injury in file No. 877458, injury date February 15, 1988, is a scheduled or unscheduled injury. Claimant still believes this particular injury is an injury to his body as a whole and, therefore, would not involve the fund. This case was heard before the undersigned in Cedar Rapids, Iowa, Page 2 on April 11, 1990. The record in the proceeding consists of the testimony of claimant, Duane Bevins, and Bob Blong, and joint exhibits 1 through 9 and 11. Prior to taking evidence and while sorting out the various stipulations and issues in finalizing the prehearing report, there was a very lengthy discussion concerning the status of this case and its readiness for hearing. The comment was made that claimant was scheduled for another surgery within approximately three weeks of the hearing which could have a substantial effect on the extent of impairment and ultimate disability. The attorneys for defendants indicated they did not think this case was ready for hearing and thought it was one which should be continued. Claimant adamantly opposed any thought of continuance and argued that claimant wanted his day in court regardless of the circumstances. The matter then proceeded to hearing. issues The issues for resolution are: 1. As to all four injuries, the nature and extent of claimant's disability. 2. As to all four injuries, the Second Injury Fund, only, raises the issue whether any of these injuries arose out of and in the course of claimant's employment. 3. As to file No. 877458, whether claimant's left shoulder injury is a scheduled injury as contended by defendant employer and defendant insurance carrier, or is it an injury to claimant's body as a whole as contended by the Second Injury Fund and claimant. 4. Whether the claimant is an odd-lot employee. findings of fact Claimant is a 47-year-old 1960 high school graduate who has no other formal education. Claimant began working for defendant employer on November 27, 1961 and except for various layoffs, worked full-time until March 11, 1990, when defendant employer shut down due to bankruptcy. Claimant described his jobs during his employment with defendant employer. These jobs basically involved deboning, defattening and skinning hams with a Whizzard knife and driving a tractor, which is similar to a fork lift, for several years. Claimant indicated that during the fourteen years he drove a tractor, two of which were up to 1988, he would use his right hand to put the tractor in gear, his left hand to steer, and his foot to press the pedal. Claimant said that when he was deboning hams, he had to keep pace with the other workers on the conveyor belt. This involved repetitive use of his hands and arms, picking up hams weighing up to 23 pounds, using a Whizzard knife, lifting up buckets of meat and dumping it every hour. Claimant recalled certain injuries he had that are applicable to this decision and which occurred before the four injuries specifically involved in this decision. Claimant had a left knee injury and surgery on December 17, 1982 (Joint Exhibit 7, page 144) which he Page 3 said is okay now except he still has pain and stiffness in it. Albert R. Coates, M.D., said claimant has a 10 percent permanent partial impairment to this knee (Jt. Ex. 9, p. 59) but 5 percent of this is work related (Jt. 1, p. 63). For purposes of this case, it is immaterial whether any of the 10 percent is work related. Claimant's right shoulder was operated on March 1, 1985 (Jt. Ex. 1, p. 96). Claimant indicated it gets stiff once in a while and he has reduced strength but no pain. Leland G. Hawkins, M.D., did an excision of the distal clavicle release of a coracoacromil ligament and partial acromionectomy. This deputy takes official notice of the agency records which indicate in file No. 799533 that claimant received a 6 percent full commutation regarding this injury. Dr. Hawkins apparently opined a 2 percent permanent disability rating (Jt. Ex. 1, p. 35). On February 17, 1986, claimant fell at home and fractured his elbow. It appears there was no impairment or residual injury resulting from this fall. The first injury for which claimant seeks compensation in this current case was when claimant injured his right elbow in September 1986, which claimant relates is due to driving a tractor and lifting. Claimant was off work two or three days and later incurred a tenotomy and epicondylectomy on his right elbow. On September 17, 1986, claimant was off three to four months (Jt. Ex. 1, p. 108). Walter J. Hales, M.D., opined a 20 percent impairment resulting from this injury (Jt. Ex. 1, pp. 52, 63). Claimant injured his left elbow on September 17, 1987, file No. 881784). Dr. Coates opined that claimant had a 5 percent permanent partial impairment to his left upper extremity. Claimant incurred an injury to his right knee on February 15, 1988. Dr. Coates opined that claimant had a 5 percent permanent partial impairment to his right lower extremity. Dr. Coates testified he further opined claimant has a total of 10 percent impairment of this right knee, 5 percent of which is work related (Jt. Ex. 9, p. 59). This is represented by file No. 888705. Claimant received a February 15, 1988 injury to his left shoulder (file No. 877458). He incurred a surgery on this left shoulder on April 13, 1988, at which time he had also had surgery on the right knee previously referred to (file No. 888705). Defendant employer and insurance carrier are basically challenging only one injury, the February 15, 1988 left shoulder injury (file No. 877458). The main dispute is whether this is a scheduled member injury or body as a whole injury. Defendants admitted, and have paid on, a left shoulder injury as a scheduled member injury. There are a few weeks disputed as to the extent of claimant's healing period. Claimant contends the February 15, 1988 left shoulder injury goes into the body as a whole. Since this dispute arose, the claimant brought in the Second Injury Fund by an amendment filed a couple of weeks before the hearing. There is no question that the evidence shows claimant's four alleged cumulative injuries arose out of and in the course of claimant's employment. as to the Second Injury Fund. Defendant Page 4 employer and insurance company stipulated that these four alleged cumulative injuries arose out of and in the course of claimant's employment and that there is a causal connection between claimant's work injury and the permanent disability. The Second Injury Fund also stipulated to a causal connection but disputed whether the injuries arose out of and in the course of claimant's employment. Notwithstanding the stipulations between the other parties referred to above, the claimant has sustained his burden concerning the issue of arising out of and in the course of employment as to the Second Injury Fund. Although voluntary payment by defendant employer and insurance company is not admission of liability, it is clear from the evidence, claimant's brief and comments of these defendants' attorney that the payment on certain of these injuries, according to the opined permanent impairment and the particular scheduled member involved, indicated defendants accepted the liability to the extent of these payments. The undersigned could take considerable time to specifically set out matters in more detail, but it is obviously not necessary. The undersigned finds that claimant's September 17, 1986 cumulative right elbow injury, his September 17, 1987 cumulative left elbow injury, his February 15, 1988 cumulative right knee injury, and his February 15, 1988 left shoulder injury all arose out of and in the course of his employment on the respective dates set out herein. It appears that an auto accident claimant had in October 1988 did not cause any permanent impairment to claimant. Claimant said he settled out of court. He said he did not have any personal injuries resulting from that accident. Notwithstanding the injuries previously referred to herein, claimant was working full-time up until defendant employer closed its place of business on or around March 11, 1990. Claimant acknowledged that he could operate the fork lift today if defendant employer was still in business and he has passed the test to do so without restrictions except for eyeglasses. Claimant insisted he would be operating the fork lift with pain in his left shoulder. Until claimant was restricted by Dr. Coates on January 31, 1989 (Jt. Ex. 1, p. 89), claimant moved up in seniority as to a better job. Whatever claimant's medical problem was, it did not keep claimant from seeking other jobs within the company. Claimant continued this after 1989, but claimant said the company would not let him have any other type jobs other than skinning hams. Claimant indicated the jobs on Joint Exhibit 1, page 78 and 79, were jobs he was able to do but defendant employer did not think he was able to do them or would not let him do them because of claimant's restrictions. Claimant has been seeking psychiatric care for many years and has had anxiety attacks. In or around September or October 1988 claimant was having severe signs of agitation, anger, tenseness, and raising his voice to the interviewer with the rehabilitation consultant, which was making the vocational counseling a very slow process (Jt. Ex. 2, pp. 49, 52 and 54). Claimant indicated that around this time defendant employer wanted him to quit work and wanted to get rid of him. Claimant related he had an anxiety attack, which is like a heart attack. Page 5 Claimant was paid $8.85 per hour when he last worked for defendant employer and contends he would be making $9.42 if he was working for defendant employer today. Claimant was very insistent and became angry when he was confronted with a thought of working for less than $8.85 per hour. On February 25, 1988, claimant was seen by Dr. Coates for left shoulder pain. After giving claimant an MRI, the doctor concluded claimant had an impingement syndrome. The doctor performed an arthroscopy of the left shoulder with resection of the labrum tear, subacrominal space (Jt. Ex. 9, p. 20). The doctor described in detail the area and nature of this impingement (Jt. Ex. 9, pp. 20-22). Dr. Coates released claimant to return to work in a limited capacity on December 12, 1988 with restrictions of a 35 pound weight carrying capacity, a 30 to 40 pound limit on lifting, pulling or pushing, and restricted crawling, overhead reaching, squatting and kneeling (Dep. Ex. 1 and 2 of Jt. Ex. 9; and Jt. Ex. 1, p. 87). Dr. Coates last saw claimant on January 12, 1989. Dr. Coates opined a 10 percent impairment to claimant's upper extremity, left shoulder (Jt. Ex. 9, p. 26-27). The doctor said he rated this as an upper extremity as it is distal or beyond the scapula, the scapula being the shoulder blade. On the date of this deposition, March 26, 1990, Dr. Coates was aware that claimant sought a second opinion from Dr. James B. Nepola, of the University of Iowa Hospitals, and that this doctor was planning a subacromonial decompression and a acriomioplasty and distal clavicle resection (Jt. Ex. 9, pp. 28-29), which is the same procedure claimant had on the opposite shoulder by Dr. Hawkins. Dr. Coates anticipated that this planned surgery would reduce the loss of function or improve the shoulder function. Dr. Coates obviously struggled in his testimony when pressed to distinguish claimant's left shoulder impairment rating between a left upper extremity or body as a whole (Jt. Ex. 9, p. 30). The doctor said this is a difficult gray area in orthopedic law. Dr. Coates consistently refers to claimant's left shoulder and left upper extremity. He never refers to claimant's left arm. Although it is true the arm is an upper extremity, it becomes extremely important in this case under consideration that exactness in terms be used. Dr. Coates said the acromion is clearly part of the axial skeleton, the humerus is not (Jt. Ex. 9, p. 23). An impingement syndrome which claimant had in his left shoulder as a result of his February 15, 1988 cumulative injury is simply a pinching of the soft tissues above the shoulder. The bone on the top of the shoulder called the acromion is a flat bone that you can feel on the very top of your shoulder (Jt. Ex. 9, p. 18). Claimant's April 13, 1988 left shoulder arthroscopy was performed to correct claimant's condition (Jt. Ex. 9, p. 20). Dr. Coates understands claimant is going to have an acriomioplasty surgery May 3, 1990, which involves part of the shoulder and not the humerus. It is obvious from Dr. Coate's testimony that this surgery affects claimant's axial skeleton (Jt. Ex. 9, p. 49). Later in his testimony, Dr. Coates said that when he is talking about the shoulder, he is talking about the entire joint but emphasized the place he performed his April 13, 1988 injury was distal to the acromion (Jt. Ex. 9, p. 60-62). He said the surgical problem he treated is actually in the shoulder and not the arm (Jt. Ex. 9, p. 49). Page 6 Dr. Coates acknowledged that Dr. Nepola is going to try to treat the same condition that he was treating and Dr. Nepola has elected to do another surgery. Although Dr. Coates would not elect surgery at this time (March 26, 1990) because of the scar tissue formation, Dr. Coates hedged on his conclusions somewhat. He indicated that there were some different facts occurring between the last time he saw the claimant in January 1989 versus Dr. Nepola's decision in March 1990, which may modify Dr. Coates' thinking a little bit (Jt. Ex. 34). From the evidence presented, the undersigned cannot tell exactly where the anticipated May 1990 surgery will actually physically be performed other than it is similar to the surgery claimant already had. It would appear that this May 1990 surgery will involve an area affecting claimant's body as a whole. On January 13, 1989, Dr. Coates wrote that: In paragraph #6, in regards to the left shoulder, I had indeed rated him at ten percent permanent partial impairment of the use of the left shoulder. Since he had had problems in the extremities at the elbow as well, I have rated that as an impairment of the upper extremity, even though it does affect part of the axial skeleton. (Jt. Ex. 1, p. 70) Although there is no dispute in the evidence of the fact that claimant will have a surgery on May 3, 1990, we could only speculate as to whether the anticipated surgery will, in fact, result in greater function or lesser function and more or less impairment. The fact is claimant has a present condition that needs correcting in the opinion of Dr. Nepola. Dr. Coates apparently felt claimant had a 50-50 chance of improvement with additional surgery (Jt. Ex. 1, pp. 44, 71). The undersigned finds that anything affecting a part of the axial skeleton does go into an individual's body as a whole. Taking all the medical evidence into consideration, the undersigned finds that claimant's left shoulder injury is, in fact, an injury to claimant's body as a whole and affects his body as a whole. It appears from the testimony that Dr. Coates believes claimant's May 3, 1990 surgery will involve claimant's axial skeleton. Dr. Coates at one time indicated this anticipated May 3, 1990 surgery is similar to the surgery he performed on April 13, 1988, and yet it seems slightly different. Claimant has a condition that must be corrected. Dr. Coates has opined an impairment rating. Taking all the facts into consideration and the expertise of this agency, the undersigned finds claimant has an impairment to his body as a whole in the amount of 6 percent. The undersigned will not speculate as to the outcome of claimant's future surgery. The law provides a remedy to all the parties through a review-reopening procedure if the surgery provides results contrary to what currently exists regarding claimant's impairment and disability. Although it would have been most likely more efficient if this case hadn't been heard on April 11, 1990 but delayed until claimant had his May 3, 1990 surgery, claimant insisted on his previously set day Page 7 in court Now that it has been found that claimant's cumulative left shoulder injury of February 15, 1988 is a body as a whole injury, discussion will now be diverted to the three scheduled member injuries. Considering the stipulations the parties have entered into and the evidence in this case, the undersigned finds that: Claimant has a 20 percent work-related permanent partial impairment to his right elbow as a result of his September 17, 1986 cumulative injury. This elbow injury is further determined to involve claimant's upper extremity (Jt. Ex. 1, p. 51). Claimant is entitled to 44 weeks of permanent partial disability benefits at the rate of $218.70 beginning October 10, 1986. Claimant has a 5 percent work-related permanent partial impairment to his left elbow as a result of his cumulative September 17, 1987 injury. This elbow injury is further determined to involve the upper extremity. Claimant incurred a 10 percent permanent partial impairment to his left knee on December 17, 1982. Claimant injured his right shoulder and incurred a surgery on March 1, 1985, resulting in a 2 percent permanent partial disability and ultimately there was a 6 percent full commutation, file No. 799533 (Jt. Ex. 1, p. 35). Claimant has a 10 percent permanent partial impairment to his right knee for which 5 percent is the result of claimant's work-related cumulative injury on February 15, 1988. Claimant has a 10 percent permanent partial impairment to his left shoulder which the undersigned finds is a 6 percent permanent partial impairment to claimant's body as a whole as a result of his February 15, 1988 cumulative left shoulder injury. Since claimant incurred two injuries on February 15, 1988, and one of said injuries has been found to result in an injury to claimant's body as a whole, then these two injuries together must be rated industrially. The undersigned finds that claimant's February 15, 1988 injuries resulted in a combined impairment to claimant's body as a whole in the amount of 8 percent. Claimant has had a long history of depression and anxiety problems and has sought psychiatric help. He has been on medication for several years to help reduce the effects of his problems. The undersigned finds that claimant's anxiety and mental problems are not the material results of any of claimant's injuries but are caused as much, if not more, by claimant's other personal and family problems. Claimant was working at defendant employer until defendant closed its business and filed bankruptcy in March 1990. There is no reason to believe claimant would not have been still working for defendant employer had it not closed. It is true claimant would have had to take time off for his May 1990 surgery and would have incurred a healing period. Trying to estimate the Page 8 results of claimant's May 1990 surgery is speculative. Although it would be logical to presume some anticipated improvement was a desired goal, Dr. Coates indicated that there was a 50-50 chance of eliminating claimant's symptoms (Jt. Ex. 1, pp. 44, 71). The undersigned is considering the evidence and conditions existing at the time of the hearing. Since the claimant was working up until March 11, 1990 notwithstanding all the injuries referred to herein, the undersigned is presuming that claimant would have continued to work in that job with no real loss of income had the company not closed. The claimant's current unemployment is not the result of his injuries. Of course, there may be facts in the future to which the undersigned cannot consider that might indicate claimant's ability to find a job with another employer might be very difficult, and it could be later determined in a review-reopening, with additional facts, that claimant has a greater industrial disability than set out below as a result of his February 15, 1988 injuries and what existed on April 11, 1990. Claimant's May 3, 1990 surgery may also have a definite impact on claimant's future. This could, likewise, affect any liability to the Second Injury Fund other than what may hereafter be determined. The undersigned emphasizes that he is only considering the evidence and conditions existing at the time of the hearing. Claimant is in an industry in which a healthy body is very essential. Use of one's arms, shoulders, back and body as a whole is very important. Claimant's approximate 28 years of seniority and the existence of a union contract has obviously been very beneficial to claimant, has enabled claimant to continue with defendant employer, and has given an incentive for defendant employer to find claimant a suitable job within the company. Since this hearing was approximately 30 days after defendant employer closed his place of business, claimant obviously has not had time to search for a job or to see whether he could do similar work that he was doing up to March 11, 1990. There is evidence that claimant was unsuccessful in finding a job prior to being taken back by defendant employer in February 1989. It is rather certain that any employer would think twice before an employer would hire claimant until the May 3 surgery and its results are known. The fact is claimant needs additional surgery. Here is another example where the continuance of this case could have been beneficial in solving the speculative questions that the undersigned will not answer in this decision. Although defendant employer continued to hire claimant in its employment, the undersigned finds claimant is not able to do some of the jobs he formerly did for defendant employer due to his February 15, 1988 injuries. There is no evidence of an appreciable loss of income as a result of claimant's injuries. There is evidence that there is a loss of income due to defendant employer closing its business due to bankruptcy. Claimant does have a loss of earning capacity as a result of his February 15, 1988 injuries as he is not able to do all the types of work he was previously able to do before these two injuries. The evidence shows that defendant employer in finding claimant a job within the company obviously understood claimant's restrictions and assigned him to a job, attempting to take those restrictions under consideration. It is very probable that claimant most likely would not have retained a job with defendant employer had claimant not had his high seniority and a Page 9 union contract was in existence. With defendant employer now closed, claimant has no seniority and no union contract to aid him in holding and retaining a job. Taking into consideration claimant's age, motivation, prior injuries, education, location of his injuries, extent of functional impairment, the defendant employer's inability to provide claimant a job and honor his seniority, and those other criteria used to determine industrial disability, the undersigned finds claimant has a 55 percent industrial disability as a result of claimant's February 15, 1988 work-related right knee cumulative injury combined with his work-related left shoulder cumulative body as a whole injury. In summarizing defendant employer's and the insurance carrier's responsibility to the claimant, they are responsible for paying claimant 44 weeks of permanent partial disability benefits as to the September 17, 1986 injury at the rate of $218.70, 11 weeks of permanent partial disability benefits as a result of claimant's September 17, 1987 left elbow-arm injury at the rate of $241.01 per week, and 275 weeks of permanent partial disability benefits in relation to the two February 15, 1988 injuries at the rate of $232.88. There is a dispute between the employer, insurance carrier and claimant concerning healing period in file Nos. 877458 and 888705, the left shoulder and right knee injuries. The disputed period is the one beginning December 20, 1988 up to and including January 31, 1989. Joint Exhibit 1, page 87, indicates that Dr. Coates released claimant to return to work beginning December 12, 1988. Claimant worked until approximately December 20, 1988, when he was bumped from his job. The evidence indicates claimant did not return to work again until February 1, 1989. The evidence is confusing because Joint Exhibit 1, page 89, indicates a message from Dr. Coates that claimant could return to work at the lean and trim job on January 31, 1989. Page 88 of the same exhibit indicates claimant could return to work January 16, 1989. The fact is claimant was not off work beginning December 20, 1988 to and including January 31, 1989 for healing period purposes. Claimant has failed to prove that he is entitled to any healing period for the period in dispute. The undersigned finds claimant is not entitled to healing period benefits from the period December 12, 1988 up to and including January 31, 1989, after which claimant returned to work. Likewise, claimant's claim for healing period from his scheduled shoulder surgery of May 3, 1988 to some unknown time in the future is denied. How claimant expected the undersigned to award any healing period benefits for this speculative and anticipatory period is beyond imagination. Claimant is not entitled to any interest on any right elbow benefits based on a 20 percent impairment (file No. 834865) for the period of November 10, 1986 to November 20, 1987. Dr. Hales did not issue an impairment rating until November 6, 1987 and after this rating, defendant insurance carrier began paying the permanent partial disability benefits approximately two weeks thereafter. It is found claimant is not entitled to any interest for said period. We must now address the Second Injury Fund's liability, if any. There is no sense going into detail as to any liability of Page 10 the Second Injury Fund in reference to claimant's September 17, 1986 injury in which claimant's December 17, 1982 left knee injury would be its first injury. Claimant was working for defendant employer and there is no evidence of any increase of permanent partial impairment or disability to claimant as a result of his first and second injuries. The same is true as to claimant's September 17, 1987 left elbow injury to which claimant's first injury would be claimant's right elbow September 17, 1986 injury and claimant's December 17, 1982 left knee injury. This now leaves only the two February 15, 1988 injuries, to which the first injuries would be claimant's September 17, 1987 left elbow injury, his September 17, 1986 right elbow injury, and his December 17, 1982 left knee injury. The Second Injury Fund is not applicable to the February 15, 1988 injuries in light of finding that the left shoulder is a body as a whole injury and, therefore, the two February 15, 1988 injuries are rated industrially. We no longer have a scheduled injury scenario as to these two injuries. As referred to earlier, claimant was working until defendant employer closed the doors. It would appear that claimant would still be working if defendant employer hadn't taken bankruptcy. As of April 11, 1990, there appears no additional industrial disability for which the Second Injury Fund would be responsible. Whether claimant's May 3, 1990 surgery will change this will have to be later decided, if the future facts warrant, and a review-reopening action might then be warranted by one or more of the parties. The undersigned finds at this time that there is no liability to the Second Injury Fund. The undersigned finds there is no necessity to go through more detail and mathematical gymnastics, offsetting of credits, and arriving at this same conclusion. There is no medical testimony or evidence that sums up claimant's current total impairment as a result of all of claimant's applicable injuries. At this time, it would be strictly speculative for the undersigned to determine that claimant has any industrial disability greater or lesser than what he has currently found. It is, likewise, evident as to what has been said prior hereto that it would seem obvious that there may be a review-reopening proceeding brought by one or more of the parties after claimant has his May 3, 1990 surgery and that is why there was extensive discussion, as previously referred to concerning the advisability of this case being continued until certain other events occurred which would further firm up items that would now be considered purely speculative. Claimant contends he is an odd-lot candidate. Without rehashing all the prior parts of this decision pertinent thereto, it is obvious claimant is not an odd-lot candidate under the law. There is insufficient evidence at this time to warrant the application of this doctrine. Approximately 30 days before the hearing, claimant was fully employed and the only event that occurred that resulted in claimant no longer working was the closing and the taking of bankruptcy by defendant employer. There is no evidence that claimant's injuries have resulted in claimant being unemployable. Claimant has not made a meaningful attempt to find a job and it is understandable as claimant has Page 11 not had much time since he has only been unemployed 30 days since he was last working on March 11, 1990. The undersigned also realizes that it would be somewhat nonproductive for claimant to look for a job if claimant were totally honest to a potential employer and would tell that employer he is going to be having shoulder body as a whole surgery on May 3, 1990 and there may be an extensive healing period. The undersigned finds claimant is not an odd-lot employee as of April 11, 1990. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received injuries on September 17, 1986, September 17, 1987, and two injuries on February 15, 1988 which arose out of and in the course of his 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 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, 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen Page 12 v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). Thereby, applying the applicable law and considering the prior findings of fact, after considering all the evidence, the undersigned further concludes that: Claimant's cumulative right elbow injury on September 17, 1986 arose out of and in the course of claimant's employment. Claimant's cumulative left elbow injury of September 17, 1987 arose out of and in the course of his employment. Claimant's cumulative right knee injury of February 15, 1988 arose out of and in the course of his employment Claimant's cumulative left shoulder injury of February 15, 1988 arose out of and in the course of his employment. Claimant's cumulative work-related right elbow injury on September 17, 1986 caused claimant to incur a 20 percent permanent partial impairment to his right arm. Claimant's cumulative work-related cumulative left elbow injury on September 17, 1987 caused a 5 percent permanent partial impairment to claimant's left arm. Claimant's cumulative work-related right knee injury on February 15, 1988 caused claimant to have a 5 percent permanent partial impairment which was in addition to claimant's prior 5 percent permanent partial impairment to his right knee. Claimant's cumulative work-related left shoulder injury on February 15, 1988 resulted in a 6 percent impairment to claimant's body as a whole. Claimant's cumulative work-related right knee injury and left shoulder body as a whole injury on February 15, 1988 resulted in a combined body as a whole impairment of 8 percent. Claimant has a 10 percent permanent partial impairment to his left knee caused by his December 1982 injury. Claimant had a March 1985 right shoulder injury, resulting in a 2 percent permanent disability (impairment) rating and a 6 percent full commutation. Claimant has not incurred any additional healing period than what has otherwise been stipulated to and paid by defendant employer and insurance carrier and claimant is not entitled to any healing period for the period beginning December 20, 1988 through January 31, 1989. Claimant is not entitled to any additional interest regarding any permanent partial disability benefits regarding his September 17, 1986 right elbow injury (file No. 834865). Claimant's psychiatric problems were not materially or proximately caused by any of claimant's injuries. Page 13 Claimant incurred a 55 percent loss of earning capacity caused by his cumulative February 15, 1988 right knee injury and his cumulative left shoulder body as a whole injury. Claimant is not an odd-lot employee. Claimant is scheduled for another left shoulder surgery on May 3, 1990. The Second Injury Fund of Iowa is not liable to the claimant for any benefits herein. order THEREFORE, it is ordered: That claimant is entitled to fifty (50) weeks of permanent partial disability benefits at the rate of two hundred eighteen and 70/100 dollars ($218.70) as a result of his September 17, 1986 cumulative right elbow injury (file No. 834865). Payments are to commence on November 10, 1986. That claimant is entitled to twelve point five (12.5) weeks of permanent partial disability benefits at the rate of two hundred forty-one and 01/100 dollars ($241.01) as a result of his cumulative left elbow injury on September 17, 1987 (file No. 881784). Payments are to commence on September 17, 1987. That claimant is entitled to two hundred seventy-five (275) weeks of permanent partial disability benefits at the rate of two hundred thirty-two and 88/100 dollars ($232.88) as a result of his cumulative February 15, 1988 right knee injury (file No. 888705) and his left shoulder body as a whole injury (file No. 877458). Payments are to commence on February 1, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Regarding claimant's September 17, 1986 right elbow injury (834865), the parties stipulated that all temporary total disability benefits and fifty (50) weeks of permanent partial disability benefits have been paid at the rate of two hundred fifty-four and 38/100 dollars ($254.38), for a total payment of twelve thousand seven hundred nineteen ($12,719). On file No. 877458, left shoulder injury, and file No. 888705, right knee injury, both occurring February 15, 1988, the parties stipulated that claimant was paid healing period or temporary total disability benefits to which he was entitled, amounting to thirty-nine point one four three (39.143) weeks at the rate of two hundred thirty-eight and 98/100 dollars ($238.98) per week, and claimant was paid twenty-six (26) weeks of permanent partial disability benefits for the left shoulder injury (file No. 877458), at the rate of two hundred thirty-eight and 98/100 dollars ($238.98) per week. That the Second Injury Fund owes claimant nothing as a result of this action. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Page 14 That defendants employer and insurance carrier shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of June, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James M Peters Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 Mr E J Giovannetti Ms Valerie A Fandel Attorneys at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 Mr Robert D Wilson Assistant Attorney General Tort Claims Hoover Building Des Moines IA 50319 5-1100; 5-1803; 1803.1 1803; 5-3200; 5-4100 Filed June 15, 1990 Bernard J O'Malley before the iowa industrial commissioner ____________________________________________________________ : DUANE BEVINS, : : Claimant, : : File No. 834865 vs. : 881784 : 877458 FARMSTEAD FOODS, : 888705 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier,, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1100 Found all four cumulative injuries arose out of and in the course of claimant's employment as to the Second Injury Fund. Defendants employer and insurance carrier stipulated to the arising out of and in the course of. Found claimant's cumulative work-related right elbow injury of September 17, 1986 caused a 20% permanent partial impairment to claimant's right arm - 50 weeks awarded. 5-1803 Found claimant's September 17, 1987 work-related cumulative left elbow injury caused 5% permanent partial impairment to claimant's left arm - 12.5 weeks awarded. 5-1803 Found Claimant's February 15, 1988 cumulative work-related injury caused a 5% permanent partial impairment to claimant's right knee. 1803.1 Found claimant's February 15, 1988 cumulative work-related left shoulder injury caused a 6% permanent impairment to claimant's body as a whole. 1803.1; 1803 Found the combined February 15, 1988 right knee and left shoulder injuries resulted in an 8% body as a whole permanent impairment resulting in a 55% loss of earning capacity in industrial disability as to these two injuries - 275 weeks awarded. 5-4100 Found claimant is not an odd-lot employee. 5-3200 Found no liability on behalf of Second Injury Fund. Claimant scheduled for another left shoulder surgery May 3, 1990, three weeks after hearing. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GORDIE THOMAS, : : Claimant, : : vs. : : File No. 881950 YOUNG RADIATOR COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S FUND INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Gordie Thomas, claimant, against Young Radiator Company, employer, and Fireman's Fund Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on April 4, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on February 21, 1991, in Des Moines, Iowa. The record was considered fully submitted at the end of the hearing. Claimant was present and testified. Also present and testifying at the hearing was Delores Jean Carpenter, claimant's sister, and Barbara Laughlin, rehabilitation consultant. The record consists of joint exhibits 1-3 and 5-18. Claimant presented exhibit 4 and exhibits A, B and C, which were objected to by defendants because they were not in compliance with the hearing assignment order dated November 9, 1990, which established the discovery deadline of January 21, 1991. Defendants' objection was sustained and claimant made an offer of proof as to these exhibits. issues Pursuant to the prehearing report and order dated February 21, 1991, the parties stipulated that claimant sustained an injury on April 4, 1988, which arose out of and in the course of her employment with employer and that such injury is a cause of temporary disability during a period of recovery. The parties further stipulated that if the injury is found to be a cause of permanent disability, it is an industrial disability to the body as a whole. In the event of an award of weekly benefits, the rate of weekly Page 2 compensation is stipulated to be $203.42 per week. Defendants agree to pay all medical benefits under Iowa Code section 85.27. Defendants have paid claimant 46 weeks of compensation at the rate of $203.42. The issues remaining to be decided are: 1. Whether a causal relationship exists between claimant's claimed injury and the disability on which she now bases her claim; and, 2. The nature and extent of any benefit entitlement. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, and the evidence contained in the exhibits herein, and makes the following findings: Claimant was born on March 29, 1947 and completed the eighth grade of school. She obtained her GED certificate on January 19, 1991. She worked at various times as a dishwasher, waitress and bartender. Sometime in 1973, claimant went to work for McGraw-Edison as a punch-press operator. She worked there for five years and then worked as a nurse's aide for several months. In July of 1978, she went to work for Young Radiator Company. Her work activity was primarily as a punch-press operator. In this capacity, she was required to push and pull dyes which weighed anywhere from 20 to 200 pounds. Claimant testified that on or about April 4, 1988, while performing her job duties, she experienced a sudden onset of right shoulder and neck pain. She informed her foreman of her condition but was able to finish out the day and the rest of the week doing paperwork rather than her usual duties. On April 10, 1988, her condition deteriorated and she presented to the emergency room at St. Joseph's Mercy Hospital in Centerville, Iowa. She was seen by S. S. Jewett, M.D. Cervical spine x-rays were taken and were within normal limits (Exhibit 10, page 200). She was treated with Flexeril and Tylenol #3 for pain and was advised to use heat and rest. Her symptoms persisted and on April 12, 1988, she sought David V. Fraser, M.D. Dr. Fraser diagnosed myofascial strain medial to the right scapula and prescribed medication, heat, restricted activity and physical therapy (Ex. 3, p. 25). Claimant's condition was not improved with physical therapy and was referred to Dr. Fraser. He admitted her to St. Joseph's Mercy Hospital on April 14, 1988 and she was started on cervical traction and hot packs. She obtained no relief from therapy and was referred to David J. Boarini, M.D., for further evaluation (Ex. 10). Claimant was examined by Dr. Boarini on April 19, 1988 and he noted some decrease in neck extension. He diagnosed myofascial neck pain. He prescribed Motrin and Flexeril. He recommended physical therapy and an EMG study. This was Page 3 performed on May 2, 1988 and was entirely normal (Ex. l). Claimant continued to be symptomatic and Dr. Boarini referred her for a myelogram. This was performed at Iowa Methodist Medical Center in Des Moines, Iowa on May 16, 1988. A report of the results by Stuart K. Lehr, M.D., revealed posterolateral disc protrusion on the right at C5-6 (Ex. 9, p. 141). On May 17, 1988, Dr. Boarini performed a C5/6 anterior cervical fusion (Ex. 9, p. 121). Sutures were removed from the neck incision on May 19, 1988 and she was discharged from the hospital with the advice to refrain from any heavy lifting (Ex. 9, p. 115). On May 23, 1988, Dr. Fraser removed the sutures from the donor site on the right iliac crest. He noted swelling in the surgical wound of the right neck. He prescribed Motrin and Tylenol #3. On June 16, 1988, cervical spine x-rays were performed and showed a solid union and bone graft in good condition. Claimant then saw Dr. Fraser for a follow-up evaluation on June 20, 1988. She reported significant muscle spasms in the base of her neck with some tension headaches. He noted a fairly good range of motion of the neck and minimal tenderness to palpitation. Range of motion of the right arm was unlimited. Dr. Fraser noted that she had been released to return to work on June 28 and he had some reservations as to her ability to return to regular duty so soon after surgery. Claimant continued to have difficulty with neck pain. She saw Dr. Boarini on August 4, 1988 and he noted that "[t]he patient is entirely neurologically intact. She has a normal gait. Range of motion in the neck is normal except for some slight pain with extreme extension." Cervical spine films showed excellent healing and alignment. He felt that her aches and pains were entirely musculoskeletal but recommended a work hardening program after which he expected she would be able to return to work without any restrictions. At this time, he gave her a four to five percent permanent partial impairment based on her cervical fusion with no residual deficits (Ex. 1, p. 4). Upon completion of the work hardening program, claimant returned to work as a punch press operator on Monday, August 29, 1988. She testified that she was unable to perform her job duties without assistance and by the fourth day was in extreme pain and was sent home by her supervisor to obtain medical attention. On September 7, 1988, she saw Dr. Fraser. She presented with complaints of bilateral shoulder spasms, neck pain and bilateral arm pain. On examination, she had no passive limitation of motion. Dr. Fraser concluded that she was unable to perform her usual job. He recommended that she resume physical therapy (Ex. 3, p. 24). When she saw Dr. Boarini on September 26, 1988, he concurred that a change of work would be in her best interest (Ex. 1, p. 3). Claimant saw Dr. Fraser for follow-up examinations on September 14, October 7 and October 20, 1988. Her complaints were referable to chronic shoulder and neck pain and on October 20, she complained of low back pain. Rather Page 4 than return to Dr. Boarini, claimant requested a second opinion. Dr. Fraser referred her to Robert C. Jones, M.D., a neurosurgeon. He evaluated her on November 28, 1988 and neurologic findings were normal and range of motion of the neck was good. There was tenderness of the left shoulder and he diagnosed bursitis. He saw no evidence of cervical radicular compression (Ex. 6, p. 40). An MRI was taken but was non-diagnostic because the films were blurred. She was referred to Kirk Green, D.O., orthopedic surgeon, for evaluation of her left shoulder pain (Ex. 6, p. 38). Claimant returned to Dr. Fraser on February 14, 1989, with complaints of swelling and tenderness in her neck and low back pain. Dr. Fraser could detect no swelling and range of motion studies were normal. As there are multiple complaints, he stated "I cannot relate this to her previous injury of a herniated cervical disc." (Ex. 3, p. 22) Dr. Jones concurred with Dr. Fraser's opinion that claimant's low back pain cannot be related to the April 1988 work injury. He indicated that he saw claimant at Mercy Hospital in 1988 for low back pain. He also stated that "I would not disagree with Dr. Boarini's physical impairment figure with respect to her neck. I understand he gave her 5 percent. This should be related to industrial capacity as you well know." (Ex. 6, p. 36) Finally, the record indicates that claimant was referred by employer to Eischen Rehabilitation Services for rehabilitation counseling and job placement. Her case was initially handled by Mr. Steven Loew. An evaluation was performed on June 6, 1989. Mr. Loew worked with claimant through November 19, 1989. On November 10, 1989, he reported, "At this time it does not appear that Ms. Thomas would be able to engage in direct job placement due to her symptoms or her frame of mind." (Ex. 8, p. 81) Upon Mr. Loew's resignation from Eischen, claimant's case was given to Kathryn Bennett. On the basis of Dr. Boarini's assessment that claimant cannot tolerate repetitive lifting in excess of 15 pounds, Ms. Bennett contacted Pat Brown at Young Radiator and was told that they had no work for claimant in view of her physical restrictions and clerical limitation (Ex. 8, p. 81). Barbara Laughlin testified that claimant's case was given to her on April 2, 1990. She testified that she identified numerous job leads which she recommended claimant pursue. She indicated that these jobs took into account claimant's lifting restrictions and were within a 40 mile radius from claimant's residence. The rate of pay ranged from $4.00 to $6.00 an hour. She testified that claimant did not follow-up on any of the job leads. It was her opinion that claimant was not motivated to return to work because she did not cooperate with her. On cross-examination, Ms. Laughlin admitted that she did not perform a total job evaluation on every job lead. She testified that she was not aware that claimant attempted to return to work at Young Radiator on two different occasions and it was her understanding that the company would return her to work if she presented herself to them. Page 5 Claimant testified that on November 17, 1990, she leased the Bel Aire Lounge and has hired four workers to assist her in running the business. She testified that she has had no income from the business to date. conclusions of law An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of employment. Section 85.3(1). The parties do not dispute that claimant sustained a neck injury which arose out of and in the course of her employment. Therefore, the issues to be determined are whether claimant's injury is causally related to the disability on which she now basis her claim and whether such injury is the cause of both temporary and permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 4, 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.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). At the hearing, the claimant alleged disability due to neck problems, spasms in her left arm, lower back pain and pain in the heels of her feet. However, claimant produced Page 6 no medical evidence pertinent to any injury other than related to a posterior lateral disc protrusion in the right at C5-6. Claimant underwent anterior cervical fusion on May 17, 1988 and subsequent x-rays on June 16, 1988, demonstrated solid union and a bone graft in good condition. Follow-up evaluations by Drs. Boarini, Fraser and Jones showed no abnormal neurological findings or evidence of cervical radicular compression. No physician who has treated and/or examined the claimant as related multiple complaints to the herniated cervical disc. Cervical spine x-rays taken at the University of Iowa Medical Center on June 14, 1989, showed no evidence of instability. Dr. Boarini, the claimant's treating neurosurgeon, released her to return to work following three weeks of work hardening. Claimant returned to work on Monday, August 29, 1988. Dr. Boarini gave her a four to five percent permanent partial impairment due to cervical fusion with no residual deficits. He imposed limitations on repetitive lifting in excess of 15 pounds. Accordingly, the medical evidence establishes a causal connection between claimant's work injury and cervical fusion resulting in permanent disability. Claimant is entitled to healing period benefits from April 11, 1988 through August 28, 1988 at the stipulated rate of $203.42 per week. The parties have stipulated that if the injury is found to be a cause of permanent disability, than such is an industrial disability to the body as a whole. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to Page 7 engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). As previously noted, claimant was born on March 29, 1947 and is 43 years old. She completed the eighth grade of school and earned a GED certificate in January 1991. Her past work activity has been primarily entry level manual labor. Claimant has not worked for employer since September 1, 1988, when she could no longer perform her usual job as a punch press operator. Dr. Boarini and Dr. Fraser have consistently held that claimant can no longer perform the heavy work of a punch press operator but did not disqualify her from performing lighter work. No doctor has authorized claimant to be off all work activity after August 1988. There is conflicting evidence in the record as to whether claimant has been able to obtain light work with employer. Claimant stated that she has not been fired from the company and is ready, willing and able to return to employment there if lighter work can be found. Vocational testimony is in conflict as to whether or not jobs exist at Young Radiator for claimant to perform. When Pat Brown, personnel director, was contacted by vocational rehabilitation she indicated that no jobs exist for the claimant at this time. Barbara Laughlin testified that claimant was unmotivated and unwilling to look for other work. However, claimant has taken the initiative to borrow money from her ex-husband and the bank to finance her own business. Considering all the elements of industrial disability, including claimant's functional impairment rating of five percent; her physical limitations; her limited educational background and work experience; her inability to perform her past relevant work activity as a punch press operator; her age and limited potential for retraining; as well as loss of earnings and earning capacity; it is the conclusion of the undersigned that claimant has sustained a permanent partial disability of 15 percent for industrial purposes entitling Page 8 her to 75 weeks of permanent partial disability benefits. order THEREFORE, IT IS ORDERED: Defendants pay to claimant healing period benefits from April 11, 1988 through August 28, 1988 at the stipulated rate of two hundred three and 42/l00 dollars ($203.42). Defendants pay claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of two hundred three and 42/l00 dollars ($203.42) per week. Defendants are entitled to a credit for any benefits previously paid to claimant. Defendants to pay accrued amounts in a lump sum. Defendants to pay interest pursuant to Iowa Code section 85.30. Defendants to pay costs pursuant to rule 343 IAC 4.33. Defendants to file claim activity report as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James J. Beery Attorney at Law 1122 Main St Norwalk IA 50211 Mr. Steven L. Udelhofen Attorney at Law Breakwater Bldg 3708 75th St Des Moines IA 50322 1108.50; 1402.30; 1402.40; 1802; 1803 Filed March 14, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : GORDIE THOMAS, : : Claimant, : : vs. : : File No. 881950 YOUNG RADIATOR COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S FUND INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.50; 1402.30; 1402.40; 1802; 1803 Claimant, a 44 year old woman with an eighth grade education and GED certificate and work background as punch press operator, sustained a posterolateral disc protrusion on the right at C5-6 and underwent a C5-6 anterior cervical fusion. She was given a 5% functional impairment with a 15 pound lifting limitation by her treating surgeon. She was awarded 15% permanent partial disability for industrial purposes.