before the iowa industrial commissioner ____________________________________________________________ _____ : CHARLES R. HAYES, : : Claimant, : File No. 882072 : vs. : A P P E A L : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 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 December 6, 1991 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law P.O. Box 535 Cherokee, Iowa 51012 5-1803 Filed February 26, 1993 Byron K. Orton EAN before the iowa industrial commissioner ____________________________________________________________ _____ : CHARLES R. HAYES, : : Claimant, : File No. 882072 : vs. : A P P E A L : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 5-1803 Claimant suffered a work injury to his shoulder in 1984. Claimant reinjured this shoulder in 1988. Claimant was 44 at time of the hearing. His restrictions had increased from the date of the first injury. He was working at the same job with increased wages. Claimant was performing overtime work but he did not think he could do overtime on the weekends. Claimant was awarded 25 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES R. HAYES, : : Claimant, : File No. 882072 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ On May 5, 1989, Charles Hayes (claimant) filed a petition for arbitration as a result of injuries to claimant's shoulder occurring on February 5, 1988. Wilson Foods Corp. (Wilson or defendant) was identified as employer and self-insured. On May 2, 1991, these matters came on for hearing in Storm Lake, Iowa. The parties appeared as follows: the claimant in person and by his counsel Harry Smith of Sioux City, Iowa and Wilson by its counsel David Sayre of Cherokee, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant and Ron Liblot. 2. Joint exhibits 1-25. stipulations The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on February 5, 1988, which arose out of and in the course of employment. c. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. d. The commencement date for permanent partial disability, is November 11, 1990. e. The rate of compensation, in the event of an award, is $277.72 per week based on a gross weekly wage of $430.00. Claimant is married and has two children. He is entitled to four exemptions. f. Claimant's entitlement to medical benefits is not in dispute. g. Defendants make no claim for employee nonoccupational group health plan benefits paid prior to hearing. h. Defendants have paid 125 weeks of workers' compensation benefits to claimant at the rate of $236.51 for file number 760655. i. That there are no bifurcated claims. j. The parties have agreed that the amount of costs to be Page 2 taxed is $65.00. Issue The only issue for resolution is whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. findings of fact 1. At the time of the hearing in this matter, claimant was 44 years old. At the time of the injury, claimant was 42 years old. Claimant is married and has two children. Claimant has completed high school and has one year of college. 2. Throughout his working life, claimant has worked at manual labor positions. His first job after he completed some of his education was in a turkey factory where he cleaned sheds and trimmed turkeys for a $1.00 per hour. His first full-time job was as a common laborer and bridge construction worker. Next claimant worked for North American Manufacturing and ran a forklift. Claimant has also had experience in the National Guard as an infantry man. Claimant began working for Wilson in May of 1966. Claimant has worked for Wilson for 25 years at a variety of jobs around the plant. These jobs have included work on the kill floor, pulling leaf lard, pump and press room, and packing hams. 3. While with Wilson, claimant has also had a series of accidents. Most pertinent to this decision is an injury that occurred in 1984. Claimant suffered an injury to his right shoulder when he was stuffing hams. Claimant pushed on a ham and tore his rotator cuff. The cuff was eventually repaired by Michael Walsh, M.D. Claimant came back and worked in the same department approximately six to eight months later. As a result of that injury, claimant was awarded 25 percent industrial disability by a decision that was filed on January 22, 1988 by Deputy Industrial Commissioner Walter R. McManus. 4. At the time claimant returned to work at Wilson, he returned to the same department with certain restrictions. Claimant had a functional impairment as found by Deputy McManus as 12.4 percent. This figure represents an average of the permanent partial impairment ratings claimant received previously. These included ratings between six percent and twenty percent. Additionally, claimant could no longer do work which required him to raise his right arm above approximately eye level or shoulder level. Claimant was also limited as to how much weight he could lift with his right arm. Dr. Walsh, the primary treating physician, indicated on April 26, 1985 that claimant should not be in the jobs that involved heavier lifting than 30 pounds. 5. The injury in issue in this matter occurred on February 5, 1988 according to the claimant. On February 19, 1988 claimant reported to Wilson that he had been lifting some screens and had popped his right shoulder. This activity had resulted in pain and soreness in his shoulder. Wilson's plant physician scheduled claimant for an EMG study Page 3 with D. Nitz, M.D. Additionally, claimant had some chiropractic treatment which did not resolve his problem. The EMG study for the right median and ulnar nerve was normal. Additionally, the right arm and shoulder were also normal. After the results of the EMG study were obtained, claimant asked for a referral to Dr. Walsh for treatment for his right shoulder. Claimant was taken off work as of March 16, 1988 for this injury. 6. On April 11, 1988, claimant saw Robert Dehne, M.D., a colleague of Dr. Walsh at the University of Nebraska Medical Center. In the history given, claimant indicated that he had re-injured his right shoulder. The medical notes reflect that claimant had a surgical history involving this shoulder. The mechanics of the injury were explained to Dr. Dehne by claimant. He indicated that his hand had been caught in the wire mesh of a rack of hams and he was forced into an external rotation with his arm down by his side. At the time of the examination, claimant had pain in his shoulder, a marked limited range of motion, occasional numbness in his neck and tingling in his fingers. Claimant's thoracic outlet was normal and the review of the EMG study was also normal. 7. On May 5, 1988, claimant was operated on for repair of an anterior superior glenoid labrum tear. Additionally, Dr. Walsh was going to make an exploration to determine whether there had been a rupture of the biceps tendon at the long head. The postoperative diagnosis was an anterior superior glenoid labrum tear and bicipital tendonitis. At the time of the surgery, Dr. Walsh noted that claimant had a grossly inflamed and somewhat enlarged biceps tendon. The problem was corrected with surgical repair of the labrum. Thereafter, claimant received physical therapy treatment to increase the mobility of the shoulder. 8. In July of 1988, claimant returned to work with a restriction of no lifting greater than 15-20 pounds. Claimant had a brief flare-up when mobilization exercises were increased in August of 1988. However, claimant's range of motion significantly improved by November of 1988. Dr. Julin, another colleague of Dr. Walsh, indicated upon an examination that claimant lacked 5-10 degrees of shorter extension and abduction and flexion. He had good biceps muscle strength. Dr. Julin imposed restrictions for claimant that he had to perform his work straight ahead of him. Claimant could not work side-to-side and he could not lift heavy loads. 9. In January of 1989, Dr. Walsh concluded that claimant was able to handle the duties that were required of him in his job as long as he was lifting something directly in front of him. Dr. Walsh noted that when claimant reaches side-to-side or behind him he still has significant pain and weakness. At that juncture, Dr. Walsh concluded that claimant had reached maximum medical improvement and in order to assess claimant's abilities, Dr. Walsh suggested that he have a functional assessment. Page 4 10. On March 2, 1989, claimant was given a functional capacity evaluation by Mr. Moe, a physical therapist in Sioux Falls, South Dakota. At the conclusion of the functional capacity evaluation, Mr. Moe indicated that claimant can lift up to 50 pounds and carry objects weighing up to 25 pounds frequently. Additionally, claimant can do heavy lifting of 75-80 pounds occasionally and carry 40 pounds frequently with both hands. Claimant was also capable of performing shoulder level work with his left hand only. Mr. Moe noted that claimant can bend, stoop, squat, crawl, climb stairs, crouch and kneel frequently. He can balance continuously. Claimant is also able to push and pull 106.5 pounds frequently. With his right arm, he can occasionally carry 52 pounds. Claimant can lift as follows: r l b Above Shoulders occasionally 22 41.50 63 frequently * 35 55.5 Desk/Chair occasionally 35 59 108 frequently 24 * * Chair/Floor occasionally 46.5 17.5 58 frequently * * * Claimant can also use his hands and feet with no limitations and he can use his neck at all positions. 11. On March 30, Dr. Walsh had an opportunity to review the functional capacity assessment that had been performed by Mr. Moe. He agreed with all of the recommendations made by Mr. Moe. He felt that lifting should be limited as indicated on the report and he also indicated that claimant needs to work in a position where he is allowed to work directly in front of him with both upper extremities. Dr. Walsh noted that claimant had a ten percent permanent partial impairment of the right upper extremity from the previous surgery and injury. Dr. Walsh increased claimant's permanent partial impairment rating to 20 percent of the right upper extremity. He also noted than claimant can do medium to heavy work, lifting between 75-80 pounds maximum on an occasional basis and with 40 pounds frequently. He noted that lifting should be straight ahead. 12. On April 13, 1988, claimant obtained a second opinion regarding his right shoulder from Richard Murphy, M.D. This doctor had examined claimant on June 17, 1985 for the purpose of giving a disability determination. Dr. Murphy also concluded that claimant had a 20 percent functional impairment of the right shoulder. 13. In May of 1988, claimant suffered another injury involving his head, neck and low back. Claimant had a screen fall on his head. This injury is not in issue in this dispute and will not be considered as part of this decision. However, claimant testified at length during the course of the hearing regarding this injury. Claimant indicated that he had received treatment for six months and Page 5 that he returned to work in November of 1990. He noted that as a result of this injury, that he had additional restrictions in that he can lift less weight and not lift on the right side at all. 14. Claimant indicated that after the second operation, involving his shoulder, he was unable to bid onto jobs that had alot of overtime. Claimant had made this same assertion during the course of the hearing conducted on April 14, 1987. Claimant indicated that at that point that because he could not bid on to the surematic machine job, he had lost substantial overtime pay as a result of his inability to own that job. Since the second operation, claimant has not tried to do any other jobs except work at his job at Wilsons. He is not doing any part-time work. However, his part-time work had largely subsided as a result of the first shoulder injury in 1984. 15. Since claimant returned to work in 1987, he has been hanging hams on trees and working in front of him. The hams he is hanging now weigh between 20-22 pounds. Claimant is only doing work at waist level now and he is not doing any work at eye level or above his shoulder. Claimant indicated that because he could not work on the surematic machine he was being denied the opportunity to bid into a six bracket job. Claimant can not go back and do that job because he can not work side-to-side, and he is limited to waist level positions. Claimant indicated that any lost income that he believes he has suffered is based on an estimate of what others around him have made working on other jobs with higher brackets. 16. Claimant had worked on a six bracket job when he was working a forklift in 1989. However, he can not do this job permanently. Additionally, claimant was working as a utility man in 1989. However, he did this work only a week or so per year and he has not done this work very often since he was injured in 1984. Moreover, claimant was bumped out of that job by seniority and in any event he decided himself that as a result of his arm pain that he could not perform the duties required of a utility man job. Claimant estimates that he has had an estimated annual loss of income of between $2000-$3000 because he cannot bid onto jobs that are worth more and he cannot work overtime on Saturday and Sunday.(1) However, claimant does work overtime in his department and works anywhere between 40-50 hours per week, 40-50 hours when overtime work is available in his department. Additionally, claimant is not restricted from working overtime. He has self selected himself out of these jobs. CONCLUSIONS OF LAW 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. (1). The majority of the jobs in the plant are two bracket jobs. There is not much overtime work available in the plant on Saturdays any more and it is unusual if there is Sunday overtime work. Page 6 The first question to resolve is whether the claimant has suffered a permanent disability as a result of the second injury to his shoulder. If he has suffered such an injury he is entitled to compensation. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 5, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. 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, 76 N.W.2d 756, 760-61 (Iowa 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. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 1962); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960); Almquist v. Shenandoah Nurseries, 254 N.W. 35,38 (Iowa 1934). The Supreme Court has also indicated that in order for an aggravation of a preexisting condition to be compensable, the aggravation should be material. Yeager, 112 N.W.2d at 302 From the medical reports of Dr. Walsh and Dr. Murphy, it is clear that claimant has suffered a further injury to his shoulder that caused an increase in claimant's functional impairment. These doctors both concluded that claimant's functional impairment was caused by his work injury. Additionally, claimant's ability to lift has been further Page 7 restricted as a result of the February injury. At the time of the first injury, claimant was restricted to work below shoulder level and no heavy lifting. Claimant is now restricted to lifting and carrying objects weighing 25 pounds frequently and 50 pounds occasionally. Claimant can also do heavy lifting of 75-80 pounds occasionally and carry 40 pounds frequently with both hands. Claimant can only perform shoulder level work with his left arm. Consequently, claimant has demonstrated that he has suffered a permanent injury as a result of the February 5, 1988 injury. The parties have agreed that if a permanent injury is found, the injury should be compensated industrially. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. In this instance, claimant is 44 years old. He is at the peak of his earning capacity. This makes claimant's loss more severe than it would be for a younger or older worker. Becke v. Turner-Busch, Inc., 34 Biennial Report of the Industrial Commissioner 34 (App. 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Iowa Ind. Comm'r App. Decision April 28, 1989). Claimant's functional impairment has increased by 10% as a result of the second injury. Claimant's restrictions have increased as a result of the second injury. Claimant has worked in one industry for the majority of his working life and retraining has not been demonstrated as a realistic alternative. Claimant returned Page 8 to the same job he had prior to the injury and is making approximately the same hourly wage that he was earning prior to the injury. Wilson has accommodated claimant's restriction and has kept him employed. Claimant has been unable to work significant amounts of overtime, but this diminution took place prior to claimant's February injury. Claimant is working overtime in his department. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 25 percent industrial disability for the injury occurring on February 5, 1988. order THEREFORE, it is ordered: 1. Wilson shall pay to claimant permanent partial disability benefits in the amount of twenty-five percent (25%) with payment at the rate of two hundred seventy-seven and 72/100 dollars ($277.72) per week commencing on November 11, 1990 for the injury he suffered to his shoulder. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Wilson is not entitled to any credit since these benefits are in excess of the amounts previously paid by Wilson for injuries to claimant's shoulder. 3. The costs of this action shall be assessed to Wilson pursuant to rule 343 IAC 4.33. 4. Wilson shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry H Smith Attorney at Law PO Box 1194 Sioux City Iowa 51102 Mr David L Sayre Attorney at Law 223 Pine Street PO Box 535 Cherokee Iowa 51012 5-1803 Filed December 6, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : CHARLES R. HAYES, : : Claimant, : File No. 882072 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Claimant suffered a work injury to his shoulder in 1984. Claimant reinjured this shoulder in 1988. Claimant was 44 at time of the hearing. His restrictions had increased from the date of the first injury. He was working at the same job with increased wages. Claimant was performing overtime work but he did not think he could do overtime on the weekends. Claimant was awarded 25 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALICE DICKERSON, : : Claimant, : : vs. : : File No. 882242 FAIRFIELD LINE, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Alice Dickerson, claimant, against Fairfield Line, Inc., employer, and United States Fidelity and Guaranty Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on April 13, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on January 18, 1991, in Des Moines, Iowa. The record was considered fully submitted at the time of the hearing. The record in this case consists of testimony from Alice Dickerson, claimant, and Matthew Manning, M.D.; joint exhibits 1-9 and B; and defendants' exhibits I-P and Q. issues Pursuant to the prehearing report and order, the parties have stipulated that, in the event of an award of weekly benefits, the rate of weekly compensation is $95.38; that the fees charged for the medical services or supplies rendered are fair and reasonable; that defendants paid claimant temporary total disability of $4,384.04 and temporary partial disability of $508.95. Page 2 The issues presented for resolution include: 1. Whether claimant sustained an injury which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the injury and the disability on which claimant now basis her claim; and, 3. Whether claimant is entitled to temporary and permanent disability benefits. 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, and makes the following findings: Claimant is 32 years old and a high school graduate. She is a certified nurse's aide. Prior to December 1986, she worked at various times as a nurse's aide, machine operator and mail sorter. The pertinent medical evidence reveals that claimant has a long history of orthopedic complaints. In January 1984, she fell off a horse and sprained her left knee and strained her lumbar spine. In August 1984, she hurt her right shoulder lifting a canner off the stove. In March 1985, she fell on a truck while loading wood and sustained an acute right shoulder rotator cuff strain and ligamentous strain. In May 1985, she injured her right arm while putting in a septic tank and moving dirt. In December 1986 she went to work for Fairfield Line as a seamstress sewing cuffs to the palms and backs of gloves. On February 11, 1987, she sought medical treatment for a strain in her right shoulder allegedly due to pulling and jerking on gloves and mittens (Exhibit 1). Claimant testified that on April 13, 1988, while pulling a glove to turn it, her shoulder "popped." She finished her work and relaxed at home. While at work the next day, her shoulder hurt so severely that she sought treatment with Matthew Arthur Manning, M.D. Right shoulder x-rays were taken on April 14, 1988 and were within normal limits (Ex. 1, page 29). Dr. Manning prescribed rest and no work or motion. Her symptoms did not improve and on April 16, 1988, she had a Cortisone injection and her arm was put in a sling. She began physical therapy three times a week. Dr. Manning then referred her to Jerry Jochims, M.D., an orthopedic surgeon in Burlington, Iowa. He examined her on May 22, 1988 and gave her a Cortisone injection and recommended continued therapy. He diagnosed bicipital tendonitis. He released her to return to light duty on June 27, 1988 and full duty on July 11, 1988 (Ex. 3, p. 3). On July 12, 1988, claimant saw Keith W. Riggins, M.D., orthopedic surgeon in Fort Madison, Iowa for a second opinion. He recommended an ultrasound and arthrographic examination of the right shoulder. Both examinations were Page 3 within normal limits. Dr. Riggins diagnosed right shoulder tendonitis (Ex. 2, p. 2) and on July 25, 1988, released her to return to work with restrictions (Ex. 2, p. 2). Claimant returned to work on August 1, 1988. She worked part-time while continuing to participate in physical therapy. At first she pieced together small leather palms to gloves but her job changed and she was given heavier gloves to sew and her symptoms returned. Based on her complaints, Dr. Manning took her off all work activity on October 16, 1988. On November 22, 1988, claimant was evaluated by James V. Nepola, M.D., at the University of Iowa Medical Center. Dr. Nepola prescribed a TENS unit and nonsteroidal medication. She was advised to use cold packs and a shoulder sling. A follow-up evaluation on January 10, 1989, revealed persistent shoulder tenderness. Right shoulder x-rays taken in May 1989, were within normal limits. However, because of continued symptoms, Dr. Nepola recommended right shoulder surgery. On July 6, 1989, claimant underwent right shoulder acromioplasty and partial rotator cuff repair. Claimant responded positively to this procedure and participated in physical therapy for increased range of motion and strengthening. She was released to return to work on April 24, 1990 (Ex. 9, p. 15). On May 16, 1990, Dr. Nepola reported as follows: She is now ten months status post and has been released to return to work with no repetitive lifting or overhead activity. She has a 40 pound single lifting and a 5 pound repetitive restriction. She is to continue using Disalcid 1500mg po BID prn. Mrs. Dickerson has a minimal permanent partial disability, the percentage of her permanent partial disability as related to her right upper extremity is 4% with [sic] translates to 2% of the whole person. (Ex. 6, p. 2) The claimant testified that after she was released to return to work, she could not get her former job back but vigorously pursued employment elsewhere. She testified that she is scheduled for a vocational rehabilitation assessment in February 1991. Page 4 conclusions of law The first issue to be determined is whether claimant sustained an injury on April 13, 1988, which arose out of and in the course of her employment with Fairfield Line, Inc. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 13, 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). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though Page 5 the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The record in this case is uncontroverted that claimant sustained an injury to her right rotator cuff on April 13, 1988. In deposition testimony, Dr. Manning was asked whether, in his opinion, claimant sustained a tear to her rotator cuff in the work related complaint of April of 1988. In response, he testified, "That would be my professional judgment." (Ex. B, p. 84, line 5). Furthermore, Dr. Nepola, testified in his deposition dated December 14, 1990, that what he saw and repaired was consistent with a use, repetitive motion type of injury (Joint Ex. 1, section 9, p. 20, ll. 8-11). While the records clearly demonstrate that claimant had shoulder problems prior to April 13, 1988, she was asymptomatic from November 4, 1986 until her injury on April 13, 1988 (Ex. B, p. 87, ll. 6-7). Claimant has demonstrated by a preponderance of the evidence that she sustained an injury to her right rotator cuff on April 13, 1988, which arose out of and in the course of her employment with Fairfield Line. The next issue to be determined is whether there is a causal relationship between claimant's injury and the disability on which she now bases her claim. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 13, 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). Page 6 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, 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). 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. After reviewing the total evidence in this case, the medical evidence and opinions of Dr. Nepola and Dr. Manning are uncontroverted that claimant's disability is causally related to her injury of April 13, 1988. To establish compensability, the injury need only be a significant factor, not the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 248, 354 (Iowa 1980). The next issue presented by the parties for resolution is whether claimant is entitled to temporary total, temporary partial or healing period benefits and permanent partial or total disability benefits. As a general rule, temporary total benefits are paid to an injured worker where no permanent disability is anticipated; healing period benefits are paid where a permanent disability is a result of the work injury; and temporary partial disability benefits are paid to an employee who is not medically capable of returning to employment substantially similar to the employment in which he was engaged at the time of the injury, but is able to perform other work consistent with his disability. The record establishes that claimant sustained permanent disability to her right shoulder as a result of an injury on April 13, 1988. She was off work from April 14, 1988 through July 31, 1988. She returned to part-time work Page 7 on August 1, 1988 and worked until October 16, 1988 when Dr. Manning took her off all work activity. She had surgery on July 6, 1989. On April 24, 1990, she was given an impairment rating and released to return to work, with restrictions. Pursuant to section 85.34(1), claimant is entitled to healing period benefits from April 14, 1988 through July 25, 1988 when Dr. Riggins released her to return to work and from October 17, 1988 until April 24, 1990 when Dr. Nepola released her to return to work. The final issue to be determined is the extent of claimant's permanent disability. The evidence clearly demonstrates that claimant sustained an injury to her right shoulder which required a right acromioplasty and partial rotator cuff repair. It is well settled that when disability is found in the shoulder, a body as a whole situation exists. Alm v. Morris Barick Cattle Co., 38 N.W.2d 161 (1949). Dr. Nepola, claimant's orthopedic surgeon, assessed that she has a minimal permanent partial disability. He stated that "the percentage of her permanent partial disability as related to her right upper extremity is four percent which translates to two percent of the whole person." He gave her a 40 pound single lifting and a five pound repetitive lifting restriction. Functional disability 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 8 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, the claimant is thirty-two (32) years old and has a high school education. Her past work was as a seamstress, nurse's aide, machine operator and mail sorter. She testified that she has looked for work as a teacher's aide, dishwasher, cook and office clerk. Dr. Nepola, her orthopedic surgeon, released her to return to work with no repetitive lifting or overhead activity. He gave her a 40 pound single lifting and a 5 pound repetitive lifting restriction. He stated that she only has minimal permanent partial disability and gave her a two percent functional impairment (Ex. 6). Claimant is currently unemployed but has been actively seeking employment after being released to return to work. She testified that she has enrolled in vocational rehabilitation. She indicated that she can perform light seamstress work. After carefully considering all of the factors of industrial disability, it is determined that claimant has sustained a permanent partial disability of five percent for industrial purposes entitling her to 25 weeks of permanent partial disability benefits at the stipulated rate of $95.38 per week. order THEREFORE, IT IS ORDERED: That defendants pay to claimant healing period benefits from April 14, 1988 through July 25, 1988 and from October 17, 1988 through April 24, 1990, when she was released to return to work at the stipulated rate of ninety-five and 38/l00 dollars ($95.38) per week.. That defendants pay claimant twenty-five (25) weeks of permanent partial disability benefits at the stipulated rate Page 9 of ninety-five and 38/l00 dollars ($95.38) per week. That defendants pay to claimant all medical expenses relating to her injury. That defendants pay all medical mileage incurred by claimant for treatment of her injury. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants receive a credit for benefits paid prior to the hearing. That the costs of this action, are charged to defendants pursuant to Division of Industrial Services Rule 343 IAC 4.33. That defendants file a claim activity report as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.l. Page 10 Signed and filed this ____ day of February, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. J. W. McGrath Attorney at Law Fourth & Dodge St P O Box 453 Keosauqua IA 52565 Mr. John D. Stonebraker Attorney at Law P O Box 2746 Davenport IA 52809 1108.50; 1402.30; 1802; 1803 Filed February 22, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : ALICE DICKERSON, : : Claimant, : : vs. : : File No. 882242 FAIRFIELD LINE, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.50; 1402.30; 1802; 1803 Claimant had a work related injury and underwent right shoulder acromioplasty and partial rotator cuff repair. Her treating surgeon gave her a functional impairment rating of 2% with no repetitive lifting or overhead activity. Claimant awarded healing period benefits and 5% permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD L. BEAN, : : Claimant, : : vs. : : File No. 882245 JAMES GARRETT & SONS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Richard L. Bean, claimant, against James Garrett & Sons, employer (hereinafter referred to as Garrett), and United Fire & Casualty Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on February 29, l988. On October 27, l989, a hearing was held on claimant's petition and the matter was consid ered 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 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 February 29, 1988, claimant received an injury which arose out of and in the course of employment with Garrett. 2. Claimant is not seeking additional temporary total or healing period benefits. 3. If permanent disability benefits are awarded, they shall begin as of June 23, 1988. 4. With reference to the computation of claimant's rate of weekly compensation, claimant was married and enti tled to four exemptions at the time of the injury. Page 2 5. All requested medical benefits have been or will be paid by defendants. 6. Claimant earned from his employment with Garrett a total of $5,281.75 during the calendar year preceding the work injury. issues The parties have submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of claimant's entitlement to weekly benefits for disability; and, III. Claimant's rate of weekly compensation. 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 evi dence 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 shall be viewed as preliminary findings of fact. Claimant testified that he worked for Garrett intermit tently off and on since 1979 as a painter and sandblaster. At the time of the injury, claimant earned $6.00 an hour except when working on government contract work. When he was working on government contract work, claimant would be paid $10.20 per hour pursuant to Federal law. Claimant was performing government contract work at the time of the injury. Garrett testified that claimant was not a responsi ble or motivated worker. If left alone, Garrett said that claimant would always slow down or stop working. Garrett also said that claimant was unreliable as to when he would show up for work. Claimant and his wife testified that claimant worked for Garrett whenever he could. On February 29, 1988, claimant injured his back from a fall from a ladder. This injury resulted in a fractured transverse process at four levels of claimant's spine, L2, L3, L4 and L5. Claimant was hospitalized for three days and then underwent follow-up conservative care from the treating orthopedic surgeon, Koert Smith, M.D. Claimant remained off work under the care of Dr. Smith until June 24, 1988, at which time Dr. Smith felt that claimant reached maximum healing and released claimant to return to work with restrictions on activity. Dr. Smith, at that time, rated claimant as having a 12 percent permanent partial impairment to the body as a whole from the injury. This impairment rating is later increased by Dr. Smith to 19 percent when Page 3 new AMA Guidelines were published for rating impairments and when Dr. Smith found a calculation error in his original rating. Claimant is currently restricted by Dr. Smith from lifting over 20 pounds with lifting of only 10 pounds on a frequent basis. Dr. Smith recommends no standing over four to six hours, no walking over four to six hours, no sitting over three to five hours, no driving over five to eight hours and only occasional bending. Claimant testified that he could not return to sand blasting work at Garrett and could not climb ladders or per form some of the painting. Garrett and others testified that claimant was observed after the injury baling hay, mow ing the lawn or weeds, hauling wood and hauling steel scrap. On one occasion claimant assisted Garrett and one of his sons in painting a building roof but claimant only operated the paint sprayer at the time. Claimant testified that since the injury, on approxi mately six occasions, he assisted his landlord in baling hay but he had to limit the amount of work he had to do. He said that after loading only a half a load of hay bales, he had to quit and drive the tractor due to back pain. This was verified by one of the landlord's employees and a friend of claimant. Claimant testified that he does on occasion cut and load wood with the help of his family and friends. He also stated that he has assisted his neighbors in cutting weeds and lawns and using lawn mowers and gasoline powered weed cutters. He said that he also cuts up steel and sells it at a local junk yard for extra money. He said that he is limited in what he can do in all of this type of work and is assisted by his family and friends in both wood and steel operations. Claimant worked for a company called GBE from November 1988 through May 1989. Claimant was terminated from this job for absenteeism. Claimant said that his absenteeism was primarily caused by pneumonia unrelated to the work injury but he said that he did miss a few days due to back prob lems. Claimant's supervisor at GBE testified that claimant never complained to him of any back problems and had rated claimant's overall appearance, attitude, initiative and quality of work at GBE as poor apart from his absenteeism. Claimant said that the work at this company involves stand ing while spraying steel racks which were hanging from an overhead rail. Claimant was not required to lift in this job. Claimant said that pulling the racks on the rail was easy. Claimant said that standing in this job bothered his back and he would return home each day in pain requiring his wife to give him back rubs. Claimant said that he did seek medical treatment on one occasion for this pain and was taken off work for a few days. There is nothing in GBE's records to indicate that claimant had submitted any verifi cation of an absence from work on the advice of a physician. Page 4 Claimant was on welfare under the aid to dependent father's program prior to and subsequent to his employment at Garrett and GBE. On a couple of occasions before the work injury, claimant was involved in a work fair program at a local county conservation park in conjunction with his receipt of welfare funds. Claimant's superiors during this time stated that claimant was a good mechanic but not moti vated and had to be constantly supervised. Claimant is 28 years of age and dropped out of school in the tenth grade. Claimant was in special education while in school. Claimant is unable to read or write. Claimant expressed difficulties with pronouncing and understanding words. Claimant cannot multiple or divide numbers. Apart from his intermittent employment at Garrett and his employ ment at GBE, claimant's only other employment has been a job he held for a few months in Oklahoma painting and sandblast ing oil drilling equipment before his marriage. applicable law and analysis Note: A credibility finding is necessary to this deci sion as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From their demeanor while testify ing, all witnesses who testified are credible. To the extent that the testimonies are conflicting each is telling their own story under their own perspective of events. I. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either tem porary 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, pos itive 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 cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 Page 5 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connec tion, 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 compensabil ity, 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 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). II. In the case sub judice, the views of Dr. Smith, the primary treating physician, as to permanent partial impairment and causal connection of claimant's difficulties to the work injury are uncontroverted. The fact that claimant can perform occasional heavy work does not refute claimant's permanent partial impairment rating as described by Dr. Smith. It would appear that Dr. Smith's functional capacities assessment may not be entirely accurate if claimant is able to load one half of a wagon load of 30 to 40 pound bales of hay before he must rest. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal 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 condi tion 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, imme diately 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; Page 6 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, l985). Claimant's medical condition before the work injury was excellent and he had no functional impairments or ascertain able disabilities due to physical difficulties. Claimant was able to fully perform physical tasks involving heavy lifting, repetitive lifting, bending, stooping, twisting and prolonged standing and sitting. Claimant's treating physi cian, Dr. Smith, has given claimant a significant permanent impairment rating to the body as a whole. More importantly, from an industrial disability standpoint, Dr. Smith has severely restricted claimant's work activities. However, as stated above, claimant is able to regularly lift up to 35 pounds on a regular basis as evident by the hay baling activity. Admittedly, this is for a limited period of time. Also, claimant did not lose his job at GBE due to his physi cal problems, but due to his absenteeism. Claimant's unre liable nature and lack of motivation is well documented in the record. His industrial disability award must be lowered accordingly. However, apart from claimant's lack of good work ethics, claimant remains disabled due to objective changes in his spine caused by his fall at work and this disability must be fully compensated. His impairment was rated by a board certified orthopedic surgeon using the most current rating guides. Claimant's activity restrictions prevent a return to much of the heavy work he has held in the past. This is especially devastating to a person who cannot read or write or perform average math skills. Heavy manual labor is the type of work claimant is best suited to perform given his lack of intellectual skills and work experiences. Claimant is relatively young and his age is a positive factor in claimant's rehabilitation. Claimant's current unemployment is due to an adverse local economy and a dis ability caused by economic factors cannot be compensated under the worker's compensation acts. Webb v. Lovejoy Construction Company, II Iowa Industrial Commissioner Reports 430 (Appeal Decision 1981). After examination of all the factors, it is found as a matter of fact that claimant has suffered a 40 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 200 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 30 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. III. With reference to rate, claimant argues that we are to use the higher per hour wages he received at the time Page 7 of the injury over a 30 to 40 hour work week. However, the first clause of Iowa Code section 85.36 mandates that we use the various subsections in that section to arrive at a rate which reflects claimant's customary wages for customary hours worked. Claimant's work was very intermittent. Use of the higher wage rate for a full week on the date of injury would not be customary hours worked or a customary wage earned. It is possible to use the 13 weeks average under the subsection 6 but again this may not be customary given the very nature of claimant's employment. Defendants argue for application of subparagraph 10 and to average the past year's income from all sources. Given the nature of claimant's employment, this appears to be the best approach to customary earnings. It appears that claimant does earn less than the average full time workers for Garrett. Therefore, using subparagraph 10, of Iowa Code section 85.36, one fifthieth of the stipulated annual earnings of $5,281.75 yields a gross weekly rate of $105.64. Given marital status and four exemptions, the commissioner's rate booklet for a work injury on February 29, 1988, shows a weekly compensation rate of $81.63. findings of fact 1. All witnesses testifying at hearing are found to be credible. 2. The work injury of February 29, l988, is a cause of a 19 percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of only light to medium work and limited bending. 3. The work injury of February 29, l988, and resulting permanent partial impairment is a cause of a 40 percent loss of earning capacity. Claimant is 28 years of age but has a very limited education. Claimant is unable to read or write or perform average math skills. Claimant had no ascertain able loss of earning capacity due to physical problems prior to the work injury. Claimant's physician imposed work/activity restrictions prevent a return to heavy manual labor. Claimant is limited in his ability to return to heavy manual labor jobs he has held in the past. Claimant's employment in manual labor occupations is the type of occu pation for which he is best suited given his work history, lack of education and intellectual abilities. Claimant has had poor work ethics both before and after the work injury. Claimant appears to lack motivation to obtain or remain employed. Claimant's current unemployment is due only in part to his work injury. Adverse economic conditions in the area also effect claimant's employability. conclusions of law Claimant has established under law entitlement to 200 weeks of permanent partial disability benefits and to rate of compensation in the amount of $81.63. Page 8 order 1. Defendants shall pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of eighty-one and 63/l00 dollars ($81.63) per week from June 23, 1988. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall received credit against this award for benefits previously paid as stipulated in the prehearing report. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pur suant to Division of Industrial Services Rule 343-4.33. 5. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.l. Signed and filed this ____ day of May, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Richard J. Bell Attorney at Law 111 East Washington St Mt Pleasant IA 52641-1988 Mr. John C. Stevens Attorney at Law 122 East Second St P O Box 748 Muscatine IA 52761 5-1803 Filed May 16, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : RICHARD L. BEAN, : : Claimant, : : vs. : : File No. 882245 JAMES GARRETT & SONS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD E. TODD, Claimant, vs. File No. 882413 TERRA INTERNATIONAL, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance carrier, The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 15, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this 27th day of August, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jack C. Paige Attorney at Law 700 Higley Building P O Box 1968 Cedar Rapids, Iowa 52406 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East 3rd Street Davenport, Iowa 52801 9998 Filed August 27, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD E. TODD, Claimant, vs. File No. 882413 TERRA INTERNATIONAL, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. .9998 Summary affirmance of deputy's decision filed July 15, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HAROLD E. TODD, : : Claimant, : : vs. : File No. 882413 : TERRA INTERNATIONAL, INC., : 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 wherein claimant seeks compensation for permanent partial disability benefits as a result of an injury occurring on April 10, 1988. The case came on for hearing on June 19, 1991 at Burlington, Iowa. The record in the proceeding consists of the testimony of the claimant, Daniel Anliker, Jerry Morris and Morris Tilson and joint exhibits A through M. issues The issues for resolution are the extent of claimant's permanent disability and whether defendants are entitled to a section 85.38(2) credit. It was stipulated that any permanent disability benefits would begin on July 14, 1988. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 52-year-old high school graduate who has no other formal education, except training by the defendant employer. He has basically been a worker in the chemical fertilizer industry since the early 1960's. He initially worked as a laborer and then did sales additionally. Claimant began working for the defendant employer around 1975 for approximately seven to eight years as a commissioned salesperson. Initially, he brought no customer business to the defendant employer. He called on farmers and sold products like Lasso and Atrazine. He was strictly on commission the first year and then went mainly on salary. Claimant became the plant manager with the defendant Page 2 employer in 1981 or 1982. He says he continued to call on farmers and build up a customer basis involving approximately 75-100 regular customers. His duties also involved analyzing his clients' needs and reading books and pamphlets so as to know how to figure the amounts of chemicals or fertilizer needed. As a plant manager, he was responsible for supervising four people and, during the busy seasons, up to seven or eight people. He was also responsible for making a profit for the defendant employer as well as ordering supplies. Claimant said that on Sunday, April 10, 1988, he was alone at the defendant employer's filling anhydrous ammonia tank wagons when a valve was opened on a pressure hose. He remembers a flash and tried to find water which kills ammonia to wash off the ammonia from his body. Because of the nature of this injury, he does not remember everything that happened nor all the events after the accident. The anhydrous exposure caused burns. Use of his goggles saved his eyes from getting severe burns. Claimant remembers a helicopter at the scene and remembers being in the hospital, but does not remember getting out nor does he remember the first two weeks in the Iowa City hospital. Claimant said he remembers a third week when they took the gauze off his eyes. He was in the hospital approximately one month. Claimant returned to work July 11, 1988 as plant manager, the same job he held on the date of his injury. He said he noticed eye and memory problems upon his return. He indicated he has trouble remembering numbers and must write more things down. He said he is now more nervous and his skin itches all the time. Claimant must watch the heat as the left side of his body does not sweat. He indicated he gets headaches now which he blames on tension and hot weather. His body is scarred from his neck down to his legs and across his back. Claimant said his endurance for physical work is a lot less now than before his accident. He does not have a lot of tolerance for heat and cold. He related that, per the doctor's instructions, he cannot take off his shirt if he is in the sun because of his grafted skin. Claimant indicated he is unable to sit on a wood chair for over 15 minutes because of his sore bottom. He is unable to move his head and neck to the right as far as he used to before the injury due to his burns and scarred tissue. He uses a lubricating cream to moisten his new skin and graft areas. He said he does not go into the fields since his injury. Claimant related his fear of working around anhydrous ammonia. He has an agreement with his current employer that he would not be requested to pump it. He said he was terminated by the defendant employer on August 26, 1989. He filed his workers' compensation petition on August 16, 1989. There has been considerable testimony surrounding the reasons for claimant's termination. Claimant said that the plant he was managing had a $135,000 profit in 1984 and that he received a bonus. In 1985, there was a $29,000 loss; in 1986, a $49,000 gain; and, in 1987, a $7,200 loss. Claimant Page 3 contends there was a $60,000 loss at his plant as the result of a large individual bankruptcy that occurred in 1987. Claimant emphasized that he did not approve credit. Claimant indicated he did not know why he was terminated, but said he walked into the plant and a Mr. Morris terminated him immediately and said he did not want the claimant to come back the following Monday to be around the employees. Claimant was hired by N.P.K., another chemical fertilizer company, on September 15, 1989, which is three weeks following his termination from the defendant employer. Claimant said he visited with a Mr. Anliker, the owner of N.P.K. Claimant said he had his own customer following. He indicated he brought several customers with him to his new employment. Claimant's new salary was $25,000 per year with no vehicle provided, but the new employer paid his mileage and insurance. Claimant's former salary with the defendant employer was $28,000 with an automobile provided. The jobs are otherwise similar. Claimant discussed his injury and limitations with Mr. Anliker. Claimant said it is stressful at times dealing with farmers, but indicated the farmers think he is more grouchy and does not get things done as promised now since the injury. Claimant acknowledged his salary at N.P.K. is $25,000 and in his first year with the company he received a $3,500 bonus. He hopes to get a bonus the second year. He now works fewer hours and does not work on Sunday. Claimant agreed that the defendant employer did an annual employee appraisal and that he received a 62-point evaluation in January of 1988, which indicated improvement was needed in the profit area. He admitted it is the plant manager's responsibility to make a profit, but not to control the company's credit policy. Claimant emphasized he brought $900,000 worth of customer business to N.P.K. from the defendant employer on his change of employment and said these farmers stayed with N.P.K. He said he has generated only $80,000-$100,000 worth of new business, but N.P.K. does not give him any new territory. He indicated the other current salesman is the boss's son who gets the other established territory that N.P.K. already has. Claimant related he feels good in making recommendations to the farmers over his 30 years of experience. He believes they follow those recommendations and indicated Mr. Anliker of N.P.K. never changed anything he recommended. Claimant's wife testified she has been married to claimant for 34 years and, aside from farming, claimant has been in the chemical-fertilizer business most of his life. She said claimant's amnesia from the accident lasted four weeks. She related her daily visit to the claimant and his condition. She related claimant was not expected to live Page 4 and was incoherent and unable to talk initially. He was on a respirator and his face was wrapped. Mrs. Todd said that after three months from claimant's return to work on July 11, 1988, claimant did not relate the difficulty, but said things were not going as well at work. She related claimant does not remember things like he did before his injury. She said sometimes he forgets and other times he never remembers ever being told a particular item. She says claimant spaces out and has nightmares, but these have not been recent. Mrs. Todd indicated claimant has had a personality change. He is more defensive and their intimate relationship has changed. She explained claimant could have been hired as a salesman by the defendant employer, if they wanted to and if he was not able to manage. Daniel Anliker, age 53, the owner and manager of N.P.K., bought his business five years ago, but has been in the fertilizer business 13 years. He was the first witness to testify and the claimant's attorney requested that claimant remove himself from the courtroom while this witness testified. Mr. Anliker has hired various people over the years and in hiring, he looks at: customer relations, personality, product knowledge with all chemical laws, ability to analyze farmer needs and to make chemical recommendations and knowledge of cash flow. He said he hired claimant in September of 1989. Claimant had stopped in to see him after claimant lost his job with the defendant employer. Claimant knew N.P.K. was looking for a person to fill a job. Mr. Anliker knew claimant had a customer basis and after talking to some of claimant's former customers, he felt some of claimant's customers would follow him. He said claimant has chemical and fertilizer knowledge and an ability to work with farmers. He expected claimant could generate new business. Claimant had very high recommendations from his customers. Mr. Anliker evaluated claimant in these last two years and is not overly pleased with claimant's record. He does not believe claimant has the knowledge he thought he had at the time of hiring as to making recommendations to farmers. Mr. Anliker said claimant has memory problems and has to check with him in order to keep chemical recommendations straight. He said that chemical recommendations get complicated. He said claimant is having trouble analyzing a farmer's problem and keeping up with the new chemicals. He said that now some of claimant's old customers are looking to him for advice rather than to the claimant. Mr. Anliker testified that claimant is not good in working with farmers and has not generated substantial new business and in fact very little. He related claimant now is not a good salesman. Mr. Anliker evaluated claimant once every year and, as a result of his first evaluation, claimant got no raise. He testified that he discussed this with the claimant. He Page 5 related he has not seen much improvement since this evaluation talk. Anliker has considered terminating claimant and will have another evaluation talk with the claimant in one month. He said he has not decided what he is going to do, but indicated it does not look too good. He emphasized that if there is no change in the next several months, he will more likely than not fire claimant for lack of production and sales. He indicated it would be a hard choice. Mr. Anliker has observed and is aware of claimant's physical problems. He has accepted the fact claimant cannot fill anhydrous tanks or pour anhydrous. This is part of the agreement he has with claimant. He said he does not think claimant's health is too good as he coughs and hacks a lot and has an endurance problem. Claimant does not do much physical work, but is usually in the office, particularly during the busy season. He said that an anhydrous smell is always around the plant and this bothers the claimant. He also is not to be exposed to dust. Mr. Anliker related that claimant does not handle stress well and has problems handling customers. He says he has only one other salesman besides the claimant and himself who does some sales, that being his son. Anliker said he has had a profit the last five years. He related he could not afford three years of losses and would get rid of a manager if that would happen. He said he would not wait three years. Jerry Morris, the defendant employer's supervisor who oversees several operations in more than one state, testified he annually approves claimant's performance. Exhibit B, page 10, is claimant's appraisal in January of 1988 signed by Morris Tilson. This witness did not do that evaluation. Morris evaluated claimant in December of 1988 (exhibit B, page 37). Claimant's overall rating was 62 (exhibit B, page 39). Claimant needed improvement as his performance was unsatisfactory and something had to be done. He discussed the bottom line profitability with the claimant. He said they looked at the two-year performance. Morris said the defendant employer's plant managed by the claimant had a $135,000 profit in 1984, a $29,300 loss in 1985, a $49,000 profit in 1986, a $7,200 loss in 1987, a $23,600 loss in 1988 and a projected $11,600 loss in 1989, which was eventually a $32,000-$35,000 loss. Mr. Morris said that when he supervised his various locations in 1989, including the claimant's Winfield location, claimant's plant was the lowest. He emphasized that a manager at a location runs his own show and is responsible for its operation and profit. He acknowledged a plant manager does not decide who gets credit. He said he was not aware of a $60,000 loss due to a bankruptcy in 1986. Morris Tilson, defendant employer's vice president of Page 6 the western division, is responsible for several plants west of the Mississippi in several states, including Iowa. He and Jerry Morris collectively decided claimant's termination. He said he was claimant's immediate supervisor from September of 1983 to December of 1988 when Mr. Morris became claimant's supervisor. He discussed claimant's 62-point rating which is unsatisfactory. He also testified to the gain and loss figures of 1984-1989. His testimony was similar to that of Jerry Morris in the analysis and discussion of claimant's work as a manager. He said that claimant's firing was the result of a poor bottom line profit and loss picture and that it had nothing to do with claimant's workers' compensation injury nor anything to do with a petition being filed. He said he did not believe he knew of the petition at the time of claimant's firing. He contends that the same criteria used for claimant's evaluation are applied to others. He acknowledged that in February of 1987, claimant received 113-point evaluation (good/competent performance). Tilson knew of no offer of other employment position for the claimant. He said he assumed there was a discussion and he does not know why an offer of employment was not made. Douglas Dean Lee, a 37-year-old farmer, testified through his deposition on May 23, 1991 (joint exhibit J). Lee said he has been farming full time for 17 years. He farms 1,300 acres of row crops and raises hogs. He has known claimant his entire life, has socialized with him and sees him 6-7 times per month. Lee knew of claimant's April 10, 1988 anhydrous ammonia injury and problems and commented that claimant is not as quick mentally as he used to be. He said that, prior to the injury, claimant was an outgoing person and one of the most respected fertilizer representatives there was in the area and that this was due to claimant's taking care of his customers. He indicated claimant had an excellent knowledge of the chemical field and that is why he had a large amount of business. Lee praised claimant's sales ability in caring for his customers. Lee discussed the changes in claimant since his April 10, 1988 injury. These changes were: not as quick to handle, resolve and understand a farmer's problems and a tendency to forget a particular problem that might regard a chemical application. He discussed claimant's inability to handle stressful situations. Claimant seems to withdraw. Claimant's physical endurance has decreased substantially. Lee stated he still buys his chemicals from the claimant. James Thacker, farmer, testified through his deposition on May 23, 1991 that he is farming 1,800 acres (joint exhibit K). He has known claimant since the fourth grade. He says he has bought chemicals from claimant beginning in the 1970's. He said claimant had an outgoing personality. Page 7 He was aware of claimant's injury of April 10, 1988 on the day it happened. Prior to April 10, 1988, he said that claimant was real sharp in chemicals and fertilizer, that he knew how much to put on and that he did soil testing. Since the injury, Thacker said claimant has seemed to lose interest in everything. He is no longer outgoing or as friendly, hardly ever smiling. He forgets things and mixed up the chemical applications on his two farms. He has less enthusiasm. Thacker is still buying from the claimant. Mickey M. Johnson, a farmer for 17 years, testified through his deposition on May 23, 1991 (joint exhibit L) that he farms 250 acres. He has known claimant his entire life. He said claimant was a very outgoing person before his April 1988 injury. He would see claimant two times per month prior to and since his injury. He said claimant handled stress very well prior to April 1988, but not as well since. He said claimant is not as friendly as he used to be. He still deals with the claimant. Nils Roberts Varney, Ph.D., a clinical neuropsychologist at the Veterans Administration Medical Center in Iowa City, Iowa, testified through his deposition on May 24, 1991 (joint exhibit M). He first saw claimant on May 6, 1988 at the invitation of G. P. Kealey, M.D., from the University of Iowa. At this time, claimant was frightened and agitated as he was having active hallucinations of mice and was thinking of committing suicide (joint exhibit M, page 9). He described claimant's delirium condition which lasted approximately four weeks. He said this was a direct result of claimant's burns and inhalation of ammonia (joint exhibit M, page 11). The consequence of the inhalation of ammonia was the robbing of the brain of oxygen. Dr. Varney said he saw claimant one month later, at which time claimant denied some of his previous conversations with the doctor. Dr. Varney said that part of his job in such cases is to talk to collaterals, like the claimant's wife. He did so and she related the concerns as to claimant, namely, his extraordinary irritability, his very out of character behavior, his lack of patience, a sense of resentfulness over his injury, his development into a rude personality, his periods where he spaces out and his memory problems. Dr. Varney suggested a full neurological work-up, but claimant would not cooperate so he never performed it (joint exhibit M, page 20). Claimant and his wife next visited Dr. Varney on August 20, 1990 at which time he said claimant was still experiencing many similar or other problems. He said claimant developed a child-like dependency on Mrs. Todd. Dr. Varney diagnosed claimant as having suffered a substantial intellectual loss or a loss of mental efficiency (joint exhibit M, page 22). On his next visit, September Page 8 18, 1990, the doctor said he was surprised that claimant was employed as claimant was not making a lot of sense. He related his conversation with the claimant (joint exhibit M, page 23). This was his last visit with the claimant and his diagnosis was: I continued to believe that he had frontal lobe syndrome; that he had very substantially diminished mental capacity, and these were the results of his accident. He had improved but not very significantally [sic] from the second exam. Obviously he was substantially improved from the first exam. (Joint exhibit M, page 25) He causally connected claimant's problems to his April 10, 1988 injury and opined claimant's neuropsychological progress as poor. He does not expect any improvement from this point forward. He said most patients with frontal lobe problems take five years to completely ruin their lives (joint exhibit M, page 26). Dr. Varney opined, under the guides of the Veterans Administration system to which he is accustomed, that claimant has a 25-30 percent impairment to his body as a whole (joint exhibit M, page 29). It appears it would be more if he used what he described as the confusing AMA guides. Dr. Varney said claimant should have a complete neurological work-up, but claimant would not go for one. Claimant denies anything is wrong with him, which is part of claimant's medical problem. Dr. Varney recommended Marc Hines, M.D., a neurologist, to the claimant. Dr. Varney said that, from a neurological standpoint, he would like to see a PET scan given. He emphasized that a person does not get any better, but it sure shows up what is wrong (joint exhibit M, page 38). He would also like to see the fanciest EEG, preferably a telemetry EEG with simultaneous video, to see if there is anything treatably wrong. Also, he would recommend a neurological work-up with the usual collection of blood gases, etc., to see if there are correctable problems (joint exhibit M, page 39). Also, he would like to see a pulmonary function test, which has nothing to do with neurology. G. P. Kealey, M.D., F.A.C.S., Director of the University of Iowa Burn Center, wrote on July 7, 1988 that claimant was released to return to work, but that he is to protect his skin injuries from chemical exposure and from ultraviolet radiation and sunlight. He also indicated that claimant may have heat and cold intolerance and therefore should restrict his activities, at least initially, to a controlled environment so as not to incur this kind of stress (joint exhibit B, page 76; joint exhibit C, page 17). Page 9 Claimant's medical records reflect the nature of claimant's chemical burns and the skin grafting that was needed (joint exhibit C). Claimant's initial injury was to his body-skin, eyes and inhalation system. Approximately 12 percent of claimant's total body surface area received the chemical burns from the anhydrous ammonia (joint exhibit C, pages 13-17). Claimant was in the burn unit April 10, 1988 to May 9, 1988. On May 17, 1988, (joint exhibit C, page 19), Dr. Kealey wrote in part that claimant has ongoing difficulty with his skin which has not stabilized, specifically his burning, loss of sensation, disathesia and scar contracture in his left neck, left anterior chest and his buttocks. He also has a significant inhalation injury and states he now has some shortness of breath. He indicated a pulmonary function test at some time, approximately a year from now, should be obtained. He also thought that claimant may have developed signs and symptoms close to post-traumatic stress disorder. He asks that the claimant be seen by a neuropsychologist, Dr. Varney, here at the University of Iowa institution for evaluation and possible support therapy. He indicated approximately two years should be allowed before one sees the end result of any residual difficulties to allow things to stabilize before assigning any final disability rating. On July 6, 1989, Marc Hines, M.D., of the Ottumwa Neurological and Psychiatric Association, P.C., wrote a report indicating claimant has a very significant depressive disorder related to his burn injury. Pursuant to history given to the doctor by the claimant, claimant was given a sleep deprived EEG on July 11, 1989 which was normal (joint exhibit E, page 6). Claimant was also given a 24-hour ambulatory EEG around the same time and it showed a normal EEG (joint exhibit E, page 7). On October 27, 1989, claimant was given a neurological examination by Bakkiam Subbiah, M.D., neurologist, who then wrote a report on October 31, 1989 (joint exhibit F, pages 3 and 4). I would suggest the following: 1. Obtain a CT of the brain with and without contrast material. This will solve a considerable host of questions, including the presence of unexplained subdural hematoma, hydrocephalus, etc., if the CT is normal. 2. I do not feel that this patient has any significant neurologic deficit that needs to be attended to at this time. 3. I do feel that this patient has exhibited symptoms of depression. Once he feels comfortable in tackling this problem and wants some help with this, a competent psychiatrist should evaluate him and treat him for this. 4. Repeated neuropsychological evaluations in this man is [sic] unlikely to be of any benefit in improving him. However if this is required as part of a psychiatric evaluation if this should come about in the near future, I would have no objection to this. Page 10 On February 27, 1990, Patrick G. Campbell, M.D., saw claimant for a psychiatric examination. He opined claimant had no psychiatric diagnosis. He wrote: Mr. Todd does not suffer from a post traumatic stress disorder, depression, anxiety disorder, somatiform disorder or any other nervous or mental disorder. A CT Scan done on February 20, 1990 at Mercy Hospital was reported as normal. . . . In my opinion, the diagnosis is no psychiatric diagnosis. No psychiatric treatment is recommended. (Joint exhibit G, page 1) On June 29, 1990, Dr. Kealey wrote an extensive report (joint exhibit C, pages 24-27). In part, he mentions: claimant had a slight restriction of the neck motion to the right side because of the scarring on the left side, claimant has a dry eye syndrome, claimant needs to continue using dry tears, claimant has an 18-39 percent below normal mild restricted ventilating defect affecting claimant's ability to expand air lungs and claimant has a 20 percent below normal alveolar volume, which is the effective service for exchanging gases. He opined that claimant has a 10 percent permanent partial impairment to his body as a whole based on his skin disability and a 10 percent body as a whole impairment based on his pulmonary condition. Although claimant will need eye medication the rest of his life, he said claimant had no permanent eye-vision impairment. He opined a combined body as a whole impairment of 19 percent. Nils Roberts Varney, Ph.D., a neuropsychologist, wrote in part in his report of September 18, 1990, (joint exhibit H, pages 1 and 2), that he had been following claimant on a regular basis beginning in May of 1988 with his most recent contact being August 21, 1990. Dr. Varney further indicated: Charlie's current full scale IQ is 100 (50th percentile). While this test is his best score to date, it is far below expectations given his occupational background and accomplishments prior to the accident. Short-term memory scores have remained poor for the most part (with occasional variability). Most obtained currently were in the 15th to 25th percentile range. Recent memory and temporal orientation were intact. Word finding was poor. Dichotic listening was borderline. (Joint exhibit H, page 1) The parties have stipulated to an employer-employee relationship, that an injury arose out of and in the course of claimant's employment on April 10, 1998 and that there is a causal connection to a healing period and some permanency. The main issue is the extent of claimant's permanent disability. The defendants contend that the neurological exam Page 11 performed by Dr. Hines, namely a sleep-deprived EEG and a 24-hour ambulatory EEG, both of which turned out normal, makes Dr. Varney's impairment ratings suspect. The defendants also refer to the fact that Dr. Varney recommended a complete neurological work-up, but that claimant would not go for one and therefore that would affect Dr. Varney's conclusions. The greater weight of medical evidence indicates that claimant has substantial problems and that some of these recommended tests, some of which were done and others were not, would only try to further determine the cause of claimant's continued problems. They would not cure the claimant nor necessarily solve his problems. They might lead to something whereby a recommendation would be made to help solve or alleviate to some extent some of claimant's problems and yet there is no assurance of that. If defendants are really sincere in their position, they could provide additional medical help or tests at their expense to see if anything further can be done to help claimant or to solve his problems. Defendants have admitted a work injury and causal connection. Defendants further contend that Dr. Varney did not even know the psychological work-up was done by Dr. Hines approximately three weeks before Dr. Varney gave his deposition and that therefore his testimony is biased. The undersigned does not accept defendants' contentions as viable with the medical evidence we have herein. There is no evidence that claimant was having the psychological problems, difficulty with his work, his relationship with the customers, his friends, his wife and his attitude in relation to his work prior to April 10, 1988. Although there is evidence that claimant was having problems at work as far as the bottom line profit and loss situation at the defendant employer's, the undersigned finds it is no coincidence that these things came up at the time and in the manner in which they did which resulted in claimant being terminated from his job on August 26, 1989, effective August 29, 1989 which date was less than two weeks after he filed his workers' compensation claim. There is evidence that apparently the defendant employer was having some losses at the plant where claimant was the manager, but it seems undisputed that claimant did not have control over the credit given and there is also testimony that is contradictory as to possibly the reason for some of the loss years. Within approximately three weeks of claimant being fired by the defendant employer, he obtained another job with a chemical fertilizer company. The subsequent employer, through inquiry, obviously saw substantial worth in the claimant and it seems undisputed that claimant brought a substantial number of customers which was an incentive to the new employer, N.P.K. Claimant indicated he brought over $900,000 worth of business. That was not contradicted by any other testimony. It is surprising with the evidence in the case that the defendant employer did not continue claimant in their employment, even if as a salesman only. It is this fact that makes claimant's firing suspect Page 12 in light of the total evidence herein. It is obvious that N.P.K. hired claimant based on his record and abilities, but now it is obvious through the testimony of the owner-manager of N.P.K., Mr. Anliker, that claimant obviously is having difficulties in handling his customers, most of which are those which were brought over from the defendant employer by the claimant. These difficulties of the claimant are obviously difficulties he was not having before his injury on April 10, 1988. Joint exhibit B, pages 107 and 108, is an unsigned anonymous letter which does not speak highly of the claimant. It would appear from exhibit B, page 106, that the letter was written around September of 1986. Joint exhibit B, pages 109-113, are letters that speak highly of the claimant and his abilities as a manager with the defendant employer and these are signed by the customers who were willing to put their reputations and truthfulness on the line by signing the letters, unlike the writer whomever it may have been that issued joint exhibit B, pages 107 and 108. The writer of that exhibit could very well have been a disgruntled customer who did not get a deal he thought he might have. There could be many reasons for the writing of that letter. When one is not willing to put their name and reputation and accusations on the line, then there can be suspect in the truthfulness in the factual situation of such an allegation. There are 66 persons who are willing to testify to claimant's 14 years of dedicated service and ability while working for the defendant employer (joint exhibit B, pages 109-113). Claimant contends he has a loss of income. It would appear that, with the bonus, he is making a similar income to what he was making with the defendant employer, if you additionally take into consideration the fact that he is making his current money, yet working less hours. There is no evidence, of course, that claimant likes the fewer hours and therefore if he worked the same amount of hours it would appear that he is making less income now than he was with the defendant employer, plus he must rely on a bonus for which there is no guarantee. Also, he does not now have the use of a vehicle at the employer's expense. There is also no evidence that he is getting the same or similar retirement, 401 or other similar benefits with the current employer that he was getting from the defendant employer, as there is evidence that, upon his termination, he received a lump sum out of his retirement plan. The undersigned finds that, in totality, claimant does have some loss of income between his current job and the job he had with the defendant employer, but the exact amount of which is not clearly defined on the evidence presented herein. Dr. Varney opined that claimant had a body as a whole impairment of 25-30 percent based upon neuropsychological factors resulting from claimant's April 10, 1988 injury. Dr. Kealey opined that claimant had a 10 percent impairment to his body as a whole based on claimant's respiratory function and a 10 percent disability on the basis of his skin dysfunction and opined a combined body as a whole Page 13 impairment of 19 percent. The doctor opined that this rating is permanent and will not change in the foreseeable future. The undersigned also finds that, where the doctor uses the word "disability," he means an impairment as to his rating. Claimant is employed. It is obvious from the current employer's testimony that claimant is close to being terminated. The current employer is not satisfied with his work and the undersigned finds that those problems which are interfering with claimant's ability to perform his current job are the results of the affects and consequences of his April 10, 1988 injury. The undersigned cannot speculate as to claimant's future employment, i.e., if he is going to be terminated. That will be left to the provisions of the law for review-reopening, if necessary. The undersigned must take the circumstances as they exist at the current time. The undersigned believes that the opinions of Dr. Kealey and Dr. Varney should be given the most weight as they treated claimant over a longer period of time and followed him through the times beginning with or close to the day of his injury for a substantial period of time. Dr. Kealey referred claimant to Dr. Varney to obtain his expert opinion also. Even though Dr. Hines had certain tests performed to which the defendants refer to as being normal tests, namely the EEGs, Dr. Hines in his report, joint exhibit E, page 3, points out that the patient has a number of symptoms consistent with multiple psychosensory symptoms seen in post-burn syndrome. He also refers to the patient's significant difficulties with memory. Taking into consideration those items that are considered in determining industrial disability, namely but not limited to claimant's pre- and post-injury medical history, his work experience prior to the injury and after his injury, his education, physical and emotional condition, his income prior to and after his injury, his transferrable skills, the nature, location and severity of his injury, his age, his motivation and his impairment, the undersigned finds that claimant has incurred a 45 percent industrial disability. The undersigned emphasizes that this is based on claimant's current situation and does not take into consideration the fact that claimant's current employment, because of his work-related injury, is obviously putting his current job in jeopardy. It appears that situation will be reviewed within the next year. This finding is based on the fact that claimant has a current job, the wages of which are somewhat comparable, but overall less than he was making with the defendant employer based again upon the fact that he has received a bonus which claimant testified he believes he will get again this year. The remaining issue is whether defendants are entitled to a credit in the amount of $1,528.98. This amount is the result of defendants paying claimant a weekly amount in addition to the $369.99 that claimant was receiving as workers' compensation benefits so that claimant's weekly net income would be the same as if he were not injured and were working on the job. Claimant contends that this is a Page 14 voluntary payment and that defendants should not be given credit for the same. Claimant seems to indicate that it is a gift or a voluntary payment for which they supposedly are obligated or should be obligated since claimant was injured on the job. Claimant tries to distinguish this additional weekly payment from the normal voluntary payments made by an insurance company. Claimant contends that this voluntary payment made by the defendant employer is different. The parties did agree that this $1,528.98 is a net figure after taxes and that, if this credit is allowed, there would be no tax consequences detrimental to the claimant. Claimant further contends that this payment was not a mistake, and that the defendants intended to have claimant make the same net income during healing period as during his employment. This agency fosters the voluntary and quick payment of benefits to an injured worker so that life can continue under the law as close to the circumstances before the injury as after. It is true that weekly workers' compensation benefits never equal the weekly income a person is making before the injury, but that is the law. The undersigned congratulates an employer who is willing to ease the pain of a work injury which usually brings about financial difficulties by extending its hand to its worker so that during the pendency of matters the worker does not feel the financial crunch as much as he would otherwise under the law. This voluntary payment on behalf of the defendants should not result in a penalty to the defendants. The mere fact that the defendant employer paid it versus the insurance carrier is of no consequence as far as the undersigned is concerned. The undersigned wishes that more employers would take this position without fear of being penalized in the end. In this respect, the defendant employer went beyond its obligation under the law. The undersigned finds it should not be penalized for such action. The undersigned finds that the defendants shall be allowed a credit for this overpayment of $1,528.98 towards any further permanent partial disability benefits that are awarded to the claimant herein. conclusions of law If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). Page 15 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. 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 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, 1985). Claimant incurred a work-related injury which caused claimant to incur a permanent partial impairment to his body as a whole based on his skin impairment, a permanent partial impairment to his body as a whole based on his pulmonary condition and a permanent impairment to his body as a whole based on his neuropsychological condition. Claimant has a loss of earning capacity caused by his April 10, 1988 work injury. Claimant has a 45 percent industrial disability as a result of his April 10, 1988 work injury. Defendants are allowed a credit in the amount of $1,528.98 which amount was voluntarily paid by the defendant Page 16 employer in a weekly supplement to the healing period workers' compensation benefits claimant was receiving so that claimant would in fact have no loss of net income during the healing period. order IT IS THEREFORE ORDERED THAT: Claimant is entitled to two hundred twenty-five (225) weeks of permanent partial disability benefits at the stipulated weekly rate of three hundred sixty-nine and 99/100 dollars ($369.99) payable commencing July 14, 1988. Defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have paid all healing period already and have additionally paid ninety-five (95) weeks of permanent partial disability benefits as stipulated by the parties. Defendants shall also be given credit for the sum of one thousand five hundred twenty-eight and 98/100 dollars ($1,528.98) which represents the sum of voluntary payments made by the defendant employer to supplement claimant's weekly healing period benefits. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. Defendants shall file an activity report upon payment of this award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this _____ day of _____________, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jack C. Paige Attorney at Law Suite 700, Higley Building P.O. Box 1968 Cedar Rapids, Iowa 52406-1968 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1700; 5-1803 Filed July 15, 1991 BERNARD J. O'MALLEY before the iowa industrial commissioner ____________________________________________________________ : HAROLD E. TODD, : : Claimant, : : vs. : File No. 882413 : TERRA INTERNATIONAL, INC., : 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. : ____________________________________________________________ 5-1803 Claimant awarded 45 percent industrial disability. 1700 Defendants given credit for $1,528.98 that was paid by defendant employer on a weekly basis over and above claimant's healing period benefits so that claimant's weekly net income would be the same as if he were not injured. Claimant contended this extra was a gift. Deputy praised defendant employer's action and held defendants should not be penalized for such voluntary and praiseworthy action.